Delhi District Court
Cbi vs Brahm Parkash Others on 29 May, 2024
IN THE COURT OF SH. GAURAV RAO,
SPECIAL JUDGE (CBI-01) (PC ACT),
ROUSE AVENUE DISTRICT COURTS, NEW DELHI.
CNR No. DLCT11-000464-2019
CC No. 102/2019 (Old No. 155/15)
RC No. 55(A)/2008
Under Section 120B r/w 420/468/471 IPC &
13(2) r/w 13(1)(d) of PC Act, 1988
Central Bureau of Investigation
.........Prosecution
Versus
1. Braham Prakash
S/o Late Sh. Bhore Ram,
R/o B-E/7C, DDA Flats, Munirka,
New Delhi-110067.
2. Ravinder Singh Sandhu,
S/o Sh. Gurmej Singh,
R/o 11, Hakikat Nagar,
Delhi-110009.
3. Rajwant Singh @ Thakur @ Ganja Thakur,
S/o Late Sh. Bheek Singh,
R/o 371/5, 2nd Floor,
Govind Puri, Kalkaji,
New Delhi.
..........accused persons
Date of institution : 10.08.2010
Date of arguments : 22.05.2024
Date of judgment : 29.05.2024
Decision : Accused Braham Parkash and
Ravinder Singh Sandhu stand
convicted & accused Rajwant
Singh stands acquitted.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 1/216
JUDGMENT
BRIEF FACTS AS PER THE CHARGE SHEET
1. The present case was registered on 22.12.2008 on the basis of a written complaint by Sh. Vivek Priyadarshini, Additional SP, CBI, ACB, New Delhi pursuant to PE No. PE- DAI-2008-A-0002 dated 19.05.2008.
1.1 It is the prosecution case that Sh. Ashok Malhotra R/o 1310-1311 Dr. Mukherjee Nagar, Delhi (accused no. 3 as per the charge sheet, however, since deceased & proceedings against him stood abated vide order dated 23.08.2016) and Sh. Lal Mani R/o D-5 Nandani Bhawan Sant Nagar Burari, Delhi-110084 (accused no. 2 as per the charge sheet, however, since discharged vide orders dated 24.02.2016) had entered into a conspiracy with accused no. 1 Braham Prakash, the then Assistant Director (LM- South East), Delhi Development Authority, New Delhi & others pursuant to which they fraudulently got allotted 25 plots in the Alaknanda Camp resettlement scheme of DDA at Madanpur Khadar, Delhi during the year 2002 on the strength of fake documents such as ration cards, Delhi Administration Identity cards etc. which were got prepared by them for the purpose of said fraudulent allotment of plots.
1.2 It is its case that accused no. 1 inserted the names of 25 persons in the survey list and issued allotment cum demand letters in the names of said 25 persons. It is its case that the accused persons got prepared and deposited the requisite demand CC No. 102/2019 CBI Vs. Braham Parkash and ors 2/216 drafts of Rs. 5-7 thousand per plot alongwith other forged papers and accepting the said papers, accused no. 1 allotted plots in the name of said 25 persons, without verification of their documents & despite duly knowing that the same were fake. It is also its case that accused no. 1 handed over the allotment papers pertaining to said 25 plots to co-accused persons, who further caused transfer of the said plots to other unsuspecting poor persons at market price.
1.3 It is its case that as per the policy guidelines for relocation of jhuggi clusters, the Jhuggi dwellers residing in a JJ Cluster prior to September 1990 are/were eligible for 18 square meter plots at alternate site and those residing in the cluster after 1990 upto September 1999 are/were eligible for 12.5 square meter plot. It is its case that the decision regarding eligibility of dwellers for alternate plots is/was taken on the basis of Ration Cards, Election Cards or Delhi Administration I-Card issued by the Government.
1.4 It is its case that Alaknanda Camp fell in the jurisdiction of Land Management South-East Zone, DDA and during the year 2002, after the transfer of Assistant Director Paramjit Singh in June, accused no. 1 joined as Assistant Director. It is its case that apart from the Assistant Director, Field Investigators (FIs) & other staff were also there in the Zone and the main duties of FIs were to survey unauthorized jhuggis cluster, unauthorized settlements and to carry out demolitions when ordered, which survey was conducted by FIs under the directions of concerned Assistant Director.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 3/216 1.5 It is its case that in the year 2002 the entire survey of Alaknanda JJ Camp as well as the allotment process of resettlement of it's residence was conducted under the direct supervision of accused no. 1 during which a survey register was prepared by FIs Vijay Pal and Kushal Pal Malik wherein, the entire details of the dwellers such as name, parentage and jhuggi number (as given in the ration card), ration card number, number of family members etc. were entered. It is its case that serial numbers were also put on the ration cards of jhuggi dwellers and thereafter, survey register was signed by FIs Vijay Pal and Kushal Pal Malik as well as accused no. 1.
1.6 It is its case that the eligible jhuggi dwellers were send a demand letter, signed by accused no. 1, which were prepared under his instructions & supervision vide which the eligible jhuggi dwellers were asked to deposit fee and documents like copy of ration card, ID, affidavit, photographs etc. It is its case that on the said demand letters, name, parentage, jhuggi address of the dweller and the required fees were written and a separate file number was given to each demand letter.
1.7 It is its case that the demand letters were also checked & signed by accused no. 1 and on deposit of aforementioned documents by the jhuggi dwellers, the same were annexed to the respective demand letters thus making a file for the individual case. It is its case that the stamp of DDA mentioning the details of the draft deposited by the jhuggi dwellers was put with the date of receipt on the photocopy of the CC No. 102/2019 CBI Vs. Braham Parkash and ors 4/216 demand letter.
1.8 It is its case that 25 plots in question were allotted by accused no. 1 and on the original demand letter, the allotted plot number & address were written and duly signed & stamped by him. It is its case that the file number, name, jhuggi number of the allottee and the allotted plot number was also entered in the allotment register.
1.9 It is its case that the relevant entires related to 25 aforementioned plots in the survey list are 24/1, 39/1, 74, 121/1, 164/1, 202/1, 1173/1, 1226/1, 1376/1, 1396/1, 1432/1, 1577/1, 1605/1, 1723/1, 1757/1, 1763/1, 1767/1, 1774/1, 1892/1, 1929/1, 1942/1, 1979/1, 1995/1, 2000/1 and 2031/1 and FIs Kushal Pal Malik & Vijay Pal denied having made any of these entires/insertion in the survey register while accused no. 1 during investigation admitted having made these entires as well as having made relevant entires even in the allotment register.
1.10 It is its case that number of persons residing in the jhuggi as entered in the survey register against above 25 entires are different from the number of persons mentioned in the photocopies of the ration cards that were enclosed in 25 DDA files of aforementioned plots, purportedly jhuggi dwellers of Alaknanda Camp.
1.11 It is its case that before deciding the eligibility of the resident of a jhuggi cluster for allotment of alternate plot genuineness of the ration card & other documents submitted had CC No. 102/2019 CBI Vs. Braham Parkash and ors 5/216 to be established, which was the duty of accused no. 1. It is its case that without establishing their authenticity, further processing could not be done and the plot could not be allotted, however, the same was not done by accused no. 1. It is its case that in the 25 files mentioned above, in the format of undertaking submitted by the jhuggi dwellers clause 5, 6 & 7 mention regarding verification of the information/documents submitted by jhuggi dwellers and consequences in case of negative results of verification.
1.12 It is its case that among the documents placed in these files, to establish the bonafide of the claimants, included photocopies of ration cards & identity cards purportedly issued by Delhi Administration, however, none of these 25 ration cards in question were issued by Food and Supplies Department and thus the same are fake & forged documents. It is its case that even the identity cards in question are not genuine, there is no verification report on record and that the demand letters were issued by accused no. 1 without conducting any verification, without obtaining report from the concerned departments.
1.13 It is its case that as per the policy guidelines for relocation of jhuggi clusters, in case any jhuggi is left out in the survey, then the resident of that jhuggi makes a representation to Director Land Management or the Commissioner (L.M.) or higher authority alongwith relevant/proof which is then sent through proper channel to the concerned Fls who have conducted the survey, to verify whether or not the entry of such person is in the survey register and whether he has been left out. It is its case CC No. 102/2019 CBI Vs. Braham Parkash and ors 6/216 that after checking the survey register and conducting the verification of the premises, concerned FIs submit their report and if the said jhuggi/person is found in existence then higher authorities constitute a team for checking & verification and thereafter it makes specific order to consider the said jhuggi dweller also. It is its case that in such case the entries of such jhuggi/person is made either in a separate list or at the end of the survey register but no such entry can be inserted in between entries in the survey register already made and the survey register is never tampered with.
1.14 It is its case that in case any jhuggi is found locked then a due serial no. is given in the survey list to that jhuggi number, the space is left blank and in the last column the remark 'locked' is mentioned. It is its case that it is not that if a jhuggi is locked then its number is not entered in survey register and under no circumstances insertions or interpolations are made in the survey register.
1.15 It is its case that no representation by any person to the effect that he/she has been left out of the survey, was ever referred to the Fls who conducted the survey and no such representation was considered or allowed by the DDA Authorities in the manner prescribed till the allotment of the 25 plots in question i.e. till December 2002.
1.16 It is its case that the demand letters to the jhuggi dwellers are/were issued soon after completion of survey and much before the demolition, otherwise no demolition could take CC No. 102/2019 CBI Vs. Braham Parkash and ors 7/216 place. It is its case that the allotment of plots takes place only after the jhuggi dwellers complete the formalities, i.e. deposit of requisite fees and other documents affidavits etc. alongwith the demand letter, however, all the demand letters in respect of the 25 plots in question were issued in December by accused no. 1 and the same are dated 2nd or 4th December 2002. It is its case that all the documents in the said 25 files were notarized on 12.12.2002 and were deposited/received in DDA on 16.12.2002. It is its case that the entries in the allotment registers for allotment of the plots by accused no. 1 are dated 04.12.2002 and on the back side of original demand letters (related to the plots in question) the allotments of plots have been made by accused no. 1 in his handwriting & under his signatures on 13.12.2002. It is its case that the demand letters were deposited in DDA by the purported residents of Alaknanda Camp alongwith the fees and documents on 16.12.2002 which is chronologically impossible and therefore accused no. 1 made fraudulent allotments of the plots on the basis of false & forged document and on the basis of insertions/interpolations/ forgery in the official records.
1.17 It is its case that the entire scam of fraudulent allotment of resettlement plots for JJ Dwellers was masterminded by deceased Sh. Ashok Malhotra.
1.18 It is its case that Lal Mani (since discharged) was employed as Deputy Secretary in Delhi Vidhan Shabha where Sh. Ashok Malhotra was running a Canteen and in this way they came in contact with each other. It is its case that Sh. Lal Mani, was working for Ashok Malhotra, at his house in Mukerjee CC No. 102/2019 CBI Vs. Braham Parkash and ors 8/216 Nagar, for payment in cash/kind and he used to participate in preparation of fake I-Cards & ration cards in the name of fictitious persons and other documents submitted in DDA/MCD in the name of fictitious identities.
1.19 It is its case that accused no. 2 Ravinder Singh Sandhu was a close confident of Ashok Malhotra and used to oversee the entire operation/activity going on in the house of Ashok Malhotra related to fraudulent acquirement and selling of resettlement plots on the basis of false & forged documents. It is its case that the photographs used on ration-cards, I-cards & various affidavits etc. were arranged by accused no. 2 who also made some sort of signatures on these cards while the details in these documents were filled in by Lal Mani and others. It is its case that during the course of investigation of RC 34/2007 (one of the group cases involving similar type of offence with similar type of modus operandi by the Ashok Malhotra group) the statement of accused no. 2 was got recorded under section 164 CrPC which is in the nature of confessional statement, wherein the modus-operandi adopted, related activities were outlined, which statement is part of the present record.
1.20 It is its case that Ashok Malhotra and accused no. 2 used to keep various materials/records which were used in preparation of fake documents and papers, including fake/blank ration-cards, I-cards, photographs, lists and maps of resettlement colonies, papers/files of DDA/MCD etc. related to various allotment schemes of DDA/MCD in the house of one Chanderjeet Arora and Mohan Lal @ Mone (neighbour & servant CC No. 102/2019 CBI Vs. Braham Parkash and ors 9/216 respectively of Ashok Malhotra) and some of these documents were records pertaining to already used papers for fake allotment of plots.
1.21 It is its case that during the course of investigation of RC25/2007/ACB/DLI (another group case), searches were conducted at the houses of Chanderjit Singh Arora and Mohan Lal @ Mone in August 2007 and the aforementioned material was recovered from their houses. It is its case that amongst the vast number of material recovered there are some copies of letters in the name of some persons of Alaknanda Camp for allotment of plots in Madanpur Khaddar, ration-cards, Delhi Administration Cards, Demand drafts in favor of DDA etc that are related to said 25 plots in question which are subject matter of the instant case. It is its case that there is also a two page list containing 25 jhuggi nos of Alaknanda Camp and corresponding ration-cards nos, I-cards nos, plot nos in the name of various persons, which are the subject matter of the instant case. It is its case that these materials were kept in the house of the said two persons by Ashok Malhotra and accused no. 2 and that statements of Mohan Lal and Chanderjeet Arora were recorded under section 164 CRPC during the course of investigation of RC 25/2007 ACB Delhi and have been taken on record in this case as evidence.
1.22 It is its case that Ashok Malhotra got made the Bankers Cheque/Pay order, which were deposited along with the forged documents in the name of fictitious persons in respect of the plots in question, through his employee Sh. Rajeshwar Prasad CC No. 102/2019 CBI Vs. Braham Parkash and ors 10/216 who was an Ex-banker and money for preparation of these Bankers Cheque/Pay order was given by Ashok Malhotra. It is its case that Sh. Rajeshwar Prasad used to look after bank work, income tax work etc. of Ashok Malhotra alongwith Pradip Miglani (brother-in-law of Ashok Malhotra).
1.23 It is its case that Ashok Malhotra had several drivers and servants/employees and all these persons as also Lal Mani & other associates of Ashok Malhotra used to put their fingerprints on the forged/ false documents in the name of fictitious persons and sometimes daily wagers/labourers were also brought for putting their fingerprints.
1.24 It is its case that the 25 plots in question have been sold & resold and the present occupants of these plots, are mostly illiterate & poor persons.
1.25 It is its case that Ashok Malhotra was in league with several property dealers through whom he used to sell the plots got allotted in fictitious names and along with the demand cum allotment letter Ashok Malhotra used to give these property dealers the forged documents, who used to further sell the plots on the basis of the false & forged documents to unsuspecting persons. It is its case that the demand cum allotment letters of the 25 resettlement plots in question were obtained by Ashok Malhotra in the name of fictitious persons and these were sold by him to accused no. 3 Rajwant Singh who further sold the plots in question at exorbitant market rates to unsuspecting, poor and illiterate persons on the basis of false & forged documents.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 11/216 1.26 It is its case that that the persons in whose names the allotment were made were non existent fictitious persons and for selling these plots, false & forged GPAs and other papers like agreement to sell, receipts, will etc. purportedly executed by the non existent entity (in whose name the plot stood allotted) were got prepared by accused no. 3, complete with some fingerprints purportedly put by the said non existent persons as seller. It is its case that these documents were then handed over to the prospective buyers in exchange for the agreed amount in cash and possession of the plot was handed ever to them, along with the false & forged documents.
1.27 It is its case that none of the persons, whose photographs are pasted in DDA files of 25 cases of Alak-Nanda Camp and in the plot paper seized from the present occupants of the plots in question, and who have been shown as residents of Alaknanda Camp and have been shown allotted plots in JJ Colony Madanpur Khaddar, ever resided in Alaknanda Camp. It is its case that none of them was a resident of Alaknanda Camp and in fact these were randomly collected photos.
1.28 It is its case that Ashok Malhotra, was a well connected man, several officials of DDA, MCD used to visit his house and among them was accused no. 1 who at that time was Assistant Director (AD) in Land Management, South-East Zone. It is its case that Lal Mani had gone several times to the house of accused no. 1 to deliver costly gifts on the instructions of Ashok Malhotra. It is its case that Ashok Malhotra had several accounts CC No. 102/2019 CBI Vs. Braham Parkash and ors 12/216 in different branches of various banks in his name as well as his wife & his children and some of the accounts were in the names of his brother-in-law Pradeep Miglani & his family members. It is its case that Ashok Malhotra used to give Rajeshwar Prasad or Pradeep Miglani huge amount of cash and as per his instructions it was deposited in the said accounts.
1.29 It is its case that Ashok Malhotra also floated several firms showing sale/purchase of garments/fabric and some of these firms were in the name of Pradeep Miglani or his family members. It is its case that in the income-tax returns and account books the source of income was shown as sale/purchase of shares, hire/purchase of vehicles, tuitions, sale of garment/fabric, however, there was no such business/source of income and all the money deposited on various occasions by Rajeshwar Prasad and Pradeep Miglani belonged to Ashok Malhotra. It is its case that in fact these firms were paper firms and were opened for the purpose of justifying huge deposits in the said bank accounts.
1.30 It is its case that the income-tax department is looking into the transactions in the said bank accounts/firms and the Miglani family and Ashok Malhotra's family were questioned by the Income Tax Department, their statements were recorded and they were not able to produce books or documents regarding sale/purchase and other business activities which were shown as the source of income in the income- tax return and for the huge deposit in the said bank accounts because there were never any such documents or business activity and the entire money CC No. 102/2019 CBI Vs. Braham Parkash and ors 13/216 deposited at various times in the said bank accounts was given by Ashok Malhotra.
1.31 It is its case that thus accused no. 1 Brahm Prakash, accused no. 2. Ravinder Singh Sandhu and accused no. 3 Rajwant Singh thus committed offences punishable u/s 120B r/w 420, 467, 468 & 471 IPC and 13(2) r/w 13(1) (d) of the Prevention of Corruption Act 1988 and also the substantive offences thereof.
1.32 It is its case that the competent authority in DDA has accorded the sanction for prosecution of the accused no. 1 u/s 19 of PC Act of 1988.
Cognizance & Charge
2. Vide order dated 08.02.2012, the cognizance of the offence was taken and the accused persons were summoned by the Ld. Predecessor of this court. After compliance of Section 207 Cr.P.C, the arguments on charge were heard and vide order dated 24.02.2016, charge for the offence punishable under Section 120B read with Section 420, 467, 468, 471 IPC & under Section 13 (2) r/w 13(1)(d) of PC Act, 1988 was framed against all the accused persons. Additionally charge for offence u/s 467 & 468 IPC r/w section 120B IPC and 471 IPC r/w section 120B IPC was framed against the accused persons. Charge for the offence punishable under Section 13(1)(d) r/w Section 13(2) of PC Act was also framed against accused no. 1. All the accused persons pleaded not guilty and claimed trial.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 14/216 Prosecution Evidence
3. In order to prove its case, prosecution examined 49 witnesses in all. The deposition of these witnesses has been dealt with in detail at the time of appreciating the factual as well as the legal aspects of the case and while considering the rival contentions raised at bar viz-a-viz their deposition. Nonetheless their role, sum & substance of their deposition has been discussed herein below.
3.1 PW1 Shri Kushal Pal Malik deposed that in the year 1984, he joined DDA as Assistant Field Investigator and subsequently, the above post was converted to the post of Field Investigator (FI) by virtue of order of court. He deposed that in the year 2008, he was posted in the Planning Department, DDA, New Delhi and he was also posted in the South East Zone (LM) in the year 2002 where he worked for 7 to 8 months. He deposed that at that time, Shri Kakkar was posted as a Dy. Director & Shri Paramjit Singh was Asstt. Director (Survey) and subsequently, in place of Shri Paramjit Singh, another officer Shri Brahm Prakash joined as AD (Survey). He deposed that other FIs, namely, Vijay Pal, Om Prakash Gupta, Jai Prakash, Om Prakash, B.G. Singh and N.C. Joshi were also posted there. He deposed that officials from Revenue Department were also posted in the Zone and they were maintaining the record of DDA Land and also watching encroachment over the DDA land. He deposed that the function of the FI is/was to conduct survey of JJ Cluster and to provide labour for demolition of unauthorized occupation over the DDA land and the revenue department used to report unauthorized CC No. 102/2019 CBI Vs. Braham Parkash and ors 15/216 occupation on the DDA land. He deposed that they also used to verify the land of DDA as per record. He deposed that the FI used to conduct survey of the JJ Cluster on the order of higher officers and the purpose of survey was known to the higher officers. He deposed that the particular block of year and measurement of JJ Cluster was also decided by higher officers and FI used to check ration card, election card and Delhi Administration ID card issued by the government to identify the status of JJ dweller at the relevant time. He deposed that the particulars of above documents also noted by FI on the survey register and FI used to put serial numbers on the jhuggis starting from serial no.1. He deposed that thereafter, survey of each premises is/was conducted and entries are/were made serial wise in the survey register in respect of each jhuggi in which name, parentage, jhuggi no. as given in the ration card, ration card no., number of family members as given in the ration card, Delhi Admn. ID Card and Votor I-card number, if any. He deposed that in case any jhuggi was found to be locked then in the relevant column, FI used to make entry as 'jhuggi found locked' against the serial number and after checking the ration card, FI used to put 'serial number of the jhuggi along with DDA' on the ration card. He deposed that the above entire exercise during the survey used to be conducted under the supervision of concerned AD and Dy. Director also used to visit from time to time during the survey. He deposed that before the demolition of unauthorized occupants of DDA land, a relocation/resettlement project used to be initiated by the higher officers and all the correspondence relating to relocation project used to be routed through file by the higher officers. He deposed that after CC No. 102/2019 CBI Vs. Braham Parkash and ors 16/216 conducting the survey the particulars of the jhuggi and jhuggi dwellers used to be entered in the survey list prepared by the FI and thereafter, entry of the above particulars used to be made in the office and FI used to sign survey list and put up the report to the Assistant Director to send the same for further action to the higher officers. He deposed that in the year 2002, he along with Vijay Pal, FI had conducted survey of Alaknanad JJ Cluster Camp on receipt of orders from his higher officers. He deposed that the then Asstt. Director (Survey) Shri Paramjit Singh accompanied him and another FI Vijay Pal for JJ Cluster, Alaknanad and on reaching the site, he instructed both of them to put a serial number on the jhuggi and then start survey from the said serial number of jhuggi. He deposed that they put the serial numbers on all the jhuggis and then started survey by visiting each jhuggi individually. He deposed that they checked ration card and other documents shown by the jhuggi dweller and entered the particulars thereof in the survey register and also entered details of jhuggi dwellers, i.e., name, parentage of jhuggi dweller, number of family members given in the ration card. He deposed that they used to enter name of the jhuggi dweller and jhuggi number serial-wise in the survey register and thereafter, survey register was signed by him and another FI and the same was put up, in the file of Alaknanada Camp, to the AD for onward orders. He identified document D8 to D11 i.e. Mark PW1/1 to PW1/4 as photocopies of survey list pertaining to Alaknanda Camp and stated that said lists were prepared in his handwriting and that of Vijay Pal. He deposed that in the survey list Mark PW1/1, entries at serial no. 24/1 at Q397 to Q399, serial no. 39/1 at Q399A and Q399A/1, serial no. 74 at Q400 and CC No. 102/2019 CBI Vs. Braham Parkash and ors 17/216 Q401, serial no. 121/1 at Q402 and Q403, serial no. 164/1 at Q403A and Q403A/1 and serial no. 202/1 at Q404 to Q406 are neither in his handwriting or in the handwriting of another FI Vijay Pal. He deposed that in the survey list Mark PW1/2, entries at serial no. 1173/1 at Q414 and serial no. 1226/1 at Q415 are neither in his handwriting nor in the handwriting of another FI Vijay Pal. He deposed that in the survey list Mark PW1/3, entries at serial no. 1376/1 at Q407, serial no. 1396/2 at Q408, serial no. 1432/1 at Q409, serial no. 1577/1 at Q410 to 412, serial no. 1605/1 at Q413, serial no. 1723/1 at Q416, serial no. 1757/1 at Q417, serial no. 1763/1 at Q418, serial no. 1767/1 at Q419, serial no. 1774/1 at Q420, serial no. 1892/1 at Q421, serial no. 1929/1 at Q422, serial no. 1942/1 at Q423, serial no. 1979/1 at Q424, serial no. 1995/1 at Q425, serial no. 2000/1 at Q426 and serial no. 2031/1 at Q427 are neither in his handwriting nor in the handwriting of another FI Vijay Pal.
He deposed that once the survey of the allotted area is conducted, they are suppose to make entries in the Survey Register and in the present case also he alongwith Vijay Pal had prepared Survey Register. He deposed that in the survey register they used to enter the name of the jhuggi dweller, the details of their ration card, voter card and ID card of Delhi Administration or any other document shown by jhuggi dweller provided for their identity or proof of residence. He deposed that after making the said entry in the Survey Register they used to put the jhuggi number of said jhuggi dweller on his ration card and the Survey Register after its preparation was signed by him, Vijay Pal and Asstt. Director Braham Prakash and thereafter, the same was further put up to higher officer for taking a decision on the CC No. 102/2019 CBI Vs. Braham Parkash and ors 18/216 subject. He deposed that for allotment of the plots, the eligible jhuggi dweller was sent a demand letter and the demand letters were used to be signed by either Dy. Director or Asstt. Director of DDA. He deposed that he does not remember in the present case, who had signed the demand letter. He again said that perhaps it was Asstt. Director who had signed on the demand letter. He deposed that through the demand letters, the jhuggi dwellers were asked to deposit the fees and the demand letters were prepared as per Survey Register by entire team of Field Investigators (FI) and Ministerial staff. He deposed that the demand letters after preparation were checked & signed by Asstt. Director or Dy. Director, as per the case and one of the staff member used to be deputed by the senior officer to receive the fee from the jhuggi dweller. He deposed that thereafter, draw of plots used to be made through parchi system and after the draw of plots the parchies of the successful candidates used to be separately kept and said candidates were given allotment slip in respect of the plot allotted to them. He deposed that the allotment slip was used to be signed by either Asstt. Director or Dy. Director. He deposed that he does not remember as to after the issuance of allotment what other document were used to be prepared. He again said, perhaps, an allotment register was also maintained in this regard. He deposed that the allotment register was maintained by any one of the staff member deputed by the senior officer. Thereafter he was shown D-7, A register bearing description "Delhi Vikas Pradhikaran, Allotment Register of 18 sq. mtr" Ex. PW46/A-5 (colly) and he deposed that in the allotment Register the jhuggi dweller used to put their thumb impression against their respective entry in the presence of Asstt.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 19/216 Director, DDA and the Asstt. Director at that time was used to be Sh. Braham Prakash.
Thereafter he was shown D-6 i.e. Ex. PW-46/A4- ( bearing description Alak Nanda 12.5 sq. mtr Madanpur Khadar) and he deposed that in the allotment Register the jhuggi dweller used to put their thumb impression against their respective entry in the presence of Asstt. Director, DDA and the Asstt. Director at that time was used to be Sh. Braham Prakash.
He deposed that in the survey list they also used to mention the number of persons living in a particular jhuggi as mentioned in the ration card and in case if any jhuggi is left to be surveyed, the jhuggi dweller used to make a complaint to senior officer and senior officer used to order re-survey of said jhuggi. He deposed that however, they did not leave any jhuggi and made survey of all the jhuggi in the areas of their jurisdiction. He deposed that in case, it is found during re-survey, that a jhuggi has been left out, then entry regarding that is made separately in the separate survey list and separate register and no entry is made in the survey list regarding the jhuggi found during re-survey in the already prepared survey list. He deposed that no complaint regarding a jhuggi being left out during the survey conducted by him and Vijay Pal was received. He deposed that after the allotment of plots as per the survey, the jhuggi of said allottee in the area was used to be demolished and he was also present in at the time of demolition of some of the jhuggi, of which he had conduced the survey. He deposed that no body came forward to him to lodge any complaint regarding survey being not conducted in respect of his/her jhuggi.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 20/216 Thereafter he was shown page no. 49 of Mark PW1/4 (D-11) and he identified his signatures at point A, signatures of Vijay Pal and Braham Prakash at points B & C respectively, after the entry no. 2036. He deposed that he does not remember the exact dates when he had conducted the survey or the date of allotment and the date of demolition of the jhuggi. He deposed that he cannot say as to in whose handwriting the entries at serial no. 24/1 at Q397 to Q399, serial no. 39/1 at Q399A and Q399/A/1, serial no. 74 at Q400 and Q401, serial no. 121/1 at Q402 and Q403, serial no. 164/1 at Q403A and Q403A/1 and serial no. 202/1 at Q404 to Q406 in survey list Mark PW1/1 are. He deposed that he cannot say as to in whose handwriting the entries at serial no. 1173/1 at Q414 and serial no. 1226/1 at Q415 in survey list Mark PW1/2 are. He deposed that he cannot say as to in whose handwriting the entries at serial no. 1376/1 at Q407, serial no. 1396/2 at Q408, serial no. 1432/1 at Q409, serial no. 1577/1 at Q410 to 412, serial no. 1605/1 at Q413, serial no. 1723/1 at Q146, serial no. 1757/1 at Q417, serial no. 1763/1 at Q418, serial no. 1767 at Q419, serial no. 1774/1 at Q420, serial no. 1892/1 at Q421, serial no. 1921/1 at Q422, serial no. 1942/1 at Q423, serial no. 1979/1 at Q424, serial no. 1995/1 at Q425, serial no. 2000/1 at Q426 and serial no. 2031/1 at Q427 in survey list Mark PW1/3 are. He deposed that the genuineness of the photocopies of the documents submitted by the jhuggi dwellers at the time of deposit of fee is/was to be checked by the senior officers either Assistant Director of Deputy Director and in the present case, the duty to check the genuineness of the documents of the allottees was that of Braham Prakash, the Assistant Director. He deposed that he does not remember if the CC No. 102/2019 CBI Vs. Braham Parkash and ors 21/216 aforementioned entries were shown to him by the CBI officials at the time of recording of his statement.
3.2 Thereafter he was cross examined by Ld. SPP for the CBI as he was resiling from his previous statement to the extent of identification of the aforementioned entires and during his cross-examination he admitted that during course of investigation, he had stated to the CBI officials that the aforementioned entires were made by accused Braham Prakash.
3.3 PW2 Shri Iqbal Singh deposed that in September 2009, he was posted as Manager, Bank of India, Kamla Nagar Branch, Delhi and during that period vide seizure memo Ex. PW2/A (colly) he had handed over to CBI two pay in slips vide which two pay orders/bankers cheques bearing nos. 028218 and 028215, both dated 27.09.02 of Rs.7000/- each were issued. He identified the seizure memo and aforesaid slips which are part of seizure memo and stated that as per the aforesaid slips, the name of the party, who had applied for the said bankers cheques, is Rajeshwar Prasad R/o 1310, Mukherjee Nagar, Delhi.
3.4 PW-3 Shri Sudhanshu Mishra deposed that he had joined Delhi Energy Development Agency (DEDA) as Asstt. Project Officer in 1986 on direct appointment and was promoted as Project Officer in 1989. He deposed that in the year 1988, DEDA had started preparation of photo I-cards of JJ Slum Dwellers for various departments of Govt. of NCT of Delhi and the entire infrastructure & manpower for the preparation of these I-cards for Delhi or other States was of DEDA only. He deposed CC No. 102/2019 CBI Vs. Braham Parkash and ors 22/216 that these I-cards were also called 'VP Singh Cards' in common parlance and he was the Incharge of the programme of issuance of these I-cards and used to send the various teams at the various locations for preparation of these cards. He deposed that a team so sent to any location consisted of a Cameraman, Laminator, Helper, Typist etc. He deposed that the FSO/Food and Civil Supply Inspector of the concerned area also used to accompany the team to the spot for the purpose of identification of residents and preparation of I-cards. He deposed that the I-cards were prepared on the spot itself while conducting the survey with the help of Polaroid cameras which delivered instant photographs and normal cameras were not used as those required the photographs to be developed in the lab which was not feasible. He deposed that the signatories who were authorized to sign those cards on behalf of Govt. were the officers of Food and Civil Supplies Department accompanying the team. He deposed that the aforesaid cards were issued till 1990 as per his memory and the record of the I-cards so issued was initially kept in DEDA in its office at 11 Lancers Road, Mall Road, Timarpur, Delhi, however, when office of DEDA was shifted to 37, Institutional Area, Tuglakabad, the record pertaining to these I- cards was later shifted to Libaspur Energy Complex at Karnal Road. He deposed that after winding up of DEDA, the entire record and assets of DEDA were declared junked and were auctioned as such. He deposed that since he had been associated with the process of preparation of the aforesaid I-cards during his tenure in DEDA, therefore, he is well aware of the aforesaid process and have seen the documentation thereof which he can identify if shown to him.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 23/216 Thereafter he was shown the files containing the I- cards Mark PW3/1 to Mark PW3/17 part of D-12, D-14, D-16, D-24, D-26, D-28, D-30, D-32, D-34, D-36, D-38, D-40, D-42 pertaining to different plots, I cards and in the name of different individuals and he deposed that the I-cards which were issued by DEDA were on pure white sheets of paper and not on pale yellow paper. He further deposed that all the aforesaid I-cards are on pale yellow paper, however, he further deposed that he cannot comment as to whether the I-cards are genuine or not and he also cannot identify whether the photographs affixed on the aforesaid I-cards are of Polaroid camera or of normal camera.
3.5 Thereafter this witness was cross examined by Ld. PP for the CBI as he was resiling from his previous statement recorded u/s 161 Cr.P.C. During his cross-examination he stated that he was called by CBI for interrogation in many cases related to allotment of alternative sites to JJ Slum dwellers but he does not now remember specifically as to whether he was interrogated in the present case also and his statement was recorded or not. Thereafter he was shown his previous statement recorded on 22.10.09 by Insp. Girish Bhardwaj of CBI i.e. Ex. PW3/A, whereupon he stated that he now remembers that this statement was recorded in the present case. He admitted that during interrogation he had told CBI that the I-cards bearing no.145133, 145177, 145335 and 145174 in files D12 relating to plot no.419 and 420, file D16 relating to plot no. 443 and file D14 relating to plot no. 416 were not from among the cards which were issued by DEDA then as these cards are on pale yellow card sheets whereas the cards issued by DEDA were on pure white sheets.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 24/216 He denied the suggestion that he had also stated to the CBI in his statement dated 22.10.09 that the photograph on the cards shown to him during his interrogation were normal photographs made from normal film camera negative and that the cards thus shown to him during interrogation were not genuine cards. He denied the suggestion that he has connived with the accused and has therefore resiled from his earlier statement Ex.PW3/A in this regard. He stated that he does not know any of the accused persons and denied the suggestion that he is deliberately concealing this fact in order to help the accused escape punishment. He denied the suggestion that he has deposed falsely on this aspect at the instance of accused to shield them.
3.6 PW-4 Shri Sangam Lal Shukla deposed that he had joined Delhi Energy Development Agency (DEDA) as LDC in 1984 on direct appointment and was promoted as UDC in 1995. He deposed on the same lines as deposed PW3 as regards the working of DEDA. When files containing the I-cards Mark PW3/1 to PW3/17 as were also shown to PW3, as detailed above, he additionally deposed that during his interrogation by CBI in the present case, he had also told the CBI that the photographs appearing on four I-cards Mark PW3/1 to PW3/4 bearing no. 145133 in file D16, 145177 in D14, 145335 and 145174 in file D12 respectively were taken by normal camera and not from Polaroid camera.
3.7 PW-5 Shri Gian Singh deposed that during the year 2009, he was posted as FSO in Deptt of Food & Civil Supplies, Govt. of NCT of Delhi having office at C-Block, DDA CC No. 102/2019 CBI Vs. Braham Parkash and ors 25/216 Kalkaji, Delhi. He deposed that CBI might have asked for information qua some ration cards from his office during that period which he must have supplied, but he does now remember the details thereof , however, he can identify the communication in this regard if shown to him. Thereafter he was shown D47, which is a letter dated 12.10.09 i.e. Ex. PW5/A and he deposed the said letter alongwith its Annexure-I was received by him from CBI at his office and the same also bears his signatures at point A. He was also shown D48, which is a letter dated 13.10.09 i.e. Ex.PW5/B and he deposed that in reply to the aforesaid letter from CBI, he had sent this letter containing the requisite information under his signatures at point A wherein it was informed that as regards the ration cards shown to have been issued by Fair Price shop no.4116 in the Annexure-I of their letter, there was never any Fair Price shop no. 4116 in circle no. 07 and so there was no question of issuance of any ration card as mentioned in Annexure-I mentioned above. He deposed that CBI was further informed in this letter that only one ration card bearing no. 037535 was shown in their official record/register which was in the name of Ravi Kumar Verma R/o 880/8 Govind Puri and was dated 11.10.99 and not in the name of Razia Begum shown as R/o Jhuggi No. B46, Alaknanda Camp as mentioned at serial no. 15 in Anneuxre-I of Ex.PW5/A. He deposed that CBI was further informed vide this letter that no other cards as mentioned in Annexure-I were issued by his office.
3.8 PW-6 Shri Praful Kumar Kapoor deposed that he was posted as Special Assistant in UCO Bank, South Patel Nagar Branch for a period of 5-6 years prior to his retirement in the year CC No. 102/2019 CBI Vs. Braham Parkash and ors 26/216 2014 in the said branch. He deposed that immediately prior to this posting, he had remained posted for a period of around 8 years in 58-59, Shopping Complex, South Patel Nagar, New Delhi Branch in the same capacity. He deposed that he knows Sh. Vinay Sethia who was incharge of the Shopping Complex Branch, Sh. H.S. Maan & Sh. V.K. Bajaj who were also posted as Manager and Asstt. Manager respectively, Ms. Sadhna Minocha who was also posted in the managerial capacity and Mrs. Saroj Obi who was posted as Asstt. in the said branch at that time. He deposed that he can identify the documents bearing his signatures as well as the signatures of the above said officials of their bank if the same are shown to him. Thereafter he was shown page no. 28 and 30 of D44, which are Production-cum-Seizure Memo dated 06.05.09 i.e. Ex.PW6/A & 07.12.2009 i.e. Ex. PW6/B in respect of certain documents purported to be handed over by Sh. V.K. Bajaj, Manager of the above bank and taken over by Insp. Hitender Adlakha and Insp. Girish Bhardwaj of CBI respecitively and he identified the signatures of Sh. V.K. Bajaj on the same He was also shown page no. 29 of D44, which is a requisition slip/voucher dated 11.12.02 Ex. PW6/C for preparation of five Manager's cheques for an amount of Rs.5000/- each in favour of DDA against cash payment of Rs.25000/- (5000x5) plus an amount of Rs.200/- as commission charged by the bank and he deposed that against the above requisition slip, five banker's cheques bearing no. 150617 to 150621 for an amount of Rs.5000/- each were issued and he had handed over the above five cheques to Sh. Vinay Sethia, the then Manager, Incharge of their Shopping Complex Branch. He further deposed that against the name and other details of the CC No. 102/2019 CBI Vs. Braham Parkash and ors 27/216 applicant of the above requisition slip/voucher also, the name of Sh. Vinay Sethia is written. He further deposed that the writing appearing in the encircled portion X containing the numbers of the Manager's cheques issued against the above requisition slip is of Ms. Sadhna Minocha.
He was also shown pages 31 to 35 which are the above original five Manager's cheque bearing nos. 150617 to 150621, all dated 11.12.02 for an amount of Rs.5000/- each in favour of DDA and he deposed that these are the same cheques which were issued by their branch against the above requisition slip Ex.PW6/C. He also identified his own signatures and that of Mrs. Saroj Obi on the above cheques i.e. Ex.PW6/D-1 to Ex.PW6/D-5.
He deposed that in case the application was for issuance of a Manager's cheque against cash payment, then it was necessary to fill in the details of the applicant in the relevant column of the requisition slip, however, in case the cheques were issued against cash payment with reference to any official of the bank, then the filling up of details of the applicant could be dispensed with. He deposed that in case of such Manager's cheque applied by a person having an account in the bank also, there was no need of filling in the details of the applicant. He deposed that as per practice and procedure, the signatures of the applicant were also required to be taken on the reverse side of the requisition slip, in token of receipt of the Manager's cheque issued against the said requisition slip, however, on the reverse side of Ex.PW6/C, there are no such signatures put in token of receiving of the above five Manager's cheque. He deposed that since the name of Mr. Vinay Sethia is written in the relevant CC No. 102/2019 CBI Vs. Braham Parkash and ors 28/216 column pertaining to the applicant and no details of the applicant are mentioned in the above requisition slip Ex.PW6/C and further since there are also no signatures on the reverse side of the above slip Ex.PW6/C in token of handing over or receiving of the above Manager's cheques, he can say that the above Manager's cheques were issued with reference of Mr. Vinay Sethia. He deposed that he does not know any Ashok Malhotra and he also does not know as to for what purpose the above Manager's cheques were got issued.
3.9 PW-7 Sh. R. S. Saxena deposed that from July 2009 to April 2011, he was posted as Sr. Manager, Bank of Maharashtra, Dr. Mukherjee Nagar, Near Batra Cinema, New Delhi-110009. Upon being shown three applications/requisition slips dated 27.09.2002 (pages 23, 24 and 25 of D-44) of the above bank for issuance of a pay order of Rs. 7,000/- each i.e. Ex. PW7/A-colly he deposed that these applications pertain to the above branch of their bank and also bear the stamp/seal of their bank. He deposed that as per the above applications, one Sh. Raheshwar Prasad, R/o 471-B, East of Loni Road, Delhi had applied for issuance of the above pay orders and as per the rubber stamp appearing in green colour on these applications, the above pay orders were issued against payment of cash amounts made by the above applicant. He further deposed that against the above three applications, the pay orders bearing numbers 663680, 663683 and 663692 were issued, however, he failed to identify the signatures on the same as same were filed and the pay orders were issued in the year 2002 whereas he was posted in the above branch only in the year 2009. On being shown the CC No. 102/2019 CBI Vs. Braham Parkash and ors 29/216 signatures of the applicant Sh. Rajeshwar Prasad as appearing on the reverse side of these applications, he deposed that since in the official course of his duties, he had been tallying the signatures of their customers as appearing in different applications and the bank records, he can say that these signatures are of one and the same person. He deposed that he cannot say as to who was the Sr. Manager of their above branch in the year 2002, however, he recollects that he had succeeded one Mr. Jain, Sr. Manager in the said branch but he does not recollect the complete name of Mr. Jain nor he will be able to identify his signatures. He deposed that he cannot say if the initials of Mr. Jain were Ashok Kumar or that his complete name might be Sh. Ashok Kumar Jain. Thereafter he was shown one production cum seizure memo dated 06.05.2009 (page 22 of D-44) i.e. Mark PW7/1 bearing the signatures of one Sh. Ashok Kumar, Sr. Manager of the above branch, but he deposed that he is not able to identify the said signatures and he cannot say if the said signatures may be of Mr. Jain, whom he succeeded in the above branch as Sr. Manager. He admitted that vide this memo, the above three applications of their bank were handed over by the then Manager to the CBI.
3.10 PW-8 Sh. R. P. Dobhal deposed that from November 2008 to December 2010, he was posted as Assistant Manager in Roop Nagar branch of State Bank of India and that he had handed over certain documents to CBI. He identified his signatures on production cum seizure memo dated 07.09.2009 (page 10 of D-44) i.e. Ex. PW8/A and deposed that vide this memo he had handed over four requisition slips/application forms to the CBI and these requisition slips were pertaining to CC No. 102/2019 CBI Vs. Braham Parkash and ors 30/216 issuance of banker's cheques of Rs. 7,000/- each by their branch and the details of such requisitions slips are mentioned therein. Thereafter he was shown four applications/requisition slips, three requisition slips are dated 27.09.2002 (pages 11, 13, and 14 of D-
44) and the fourth requisition slip is dated 28.02.2009 (page 12 of D-44) i.e. Ex. PW8/B (colly) and he identified that these applications pertain to the above branch of his bank and also bear the stamp/seal of their branch at point A on each requisition slip. He deposed that as per the above applications, one Sh. Raheshwar Prasad, R/o 471-B, East of Loni Road, Delhi had applied for issuance of the above pay orders. He further deposed that as per the rubber stamp appearing in blue colour on these applications, the above pay orders were issued against payment of cash amounts made by the above applicant and against the above four applications, the pay orders bearing numbers 890199, 890217, 890198 and 890202 were issued, however, he stated that he cannot identify the signatures on the same as the above applications were filed and the pay orders were issued in the year 2002 whereas he was posted in the above branch only in November 2009. Thereafter he was shown the signatures of the applicant Sh. Rajeshwar Prasad as appearing on the front lower right side at point B and his signatures as appearing at points B1 near the blue colour stamp of the above branch on these applications and he deposed that since in the official course of his duties, he had been tallying the signatures of their customers as appearing in different applications and the bank records, he can say that these signatures are of one and the same person. He further deposed that the signatures appearing at point B1 were put by the applicant at the time of filling up of the above CC No. 102/2019 CBI Vs. Braham Parkash and ors 31/216 applications and the signatures appearing at the point B were put by the applicant at the time of receiving of the pay orders handed over to the applicant against counter foil slips of the above applications.
3.11 PW-9 Sh. Ram Lal Balmiki deposed that he was posted as Deputy Manager in Kamla Nagar Branch of SBI from March/April, 2008 till his retirement on 31.03.2012. Upon being shown production cum seizure memo dated 07.09.2009 (page 7 of D-44) i.e. Ex. PW9/A he identified his signatures at point A. He further deposed that vide this memo, he had handed over two requisition slips/application forms to the CBI and these requisition slips were pertaining to issuance of banker's cheques of Rs. 7,000/- each by their branch and the details of such requisition slips are mentioned therein. Thereafter he was shown two applications/requisition slips dated 28.09.2002 (pages 8 and 9 of D-44) i.e. Ex. PW9/B (colly) and he identified that these applications pertain to the above branch of his bank and also bear the stamp/seal of their branch at point A on each requisition slip. He deposed that as per the above applications, one Sh. Raheshwar Prasad, R/o 1310, Dr. Mukherjee Nagar, Delhi had applied for issuance of the above pay orders and as per the rubber stamp appearing in blue colour on these applications, the above pay orders were issued against payment of cash amounts made by the above applicant and against the above two applications, the pay orders bearing numbers 069410 and 069416 were issued. He deposed that the numbers are mentioned in the middle of lower of the application forms at point B on each application under the column DD No., however, he stated that he is unable to CC No. 102/2019 CBI Vs. Braham Parkash and ors 32/216 identify the signatures on the above applications as the same were filed and the pay orders issued in the year 2002 whereas he was posted in the above branch only in March/April, 2008. He was shown signatures of applicant Sh. Rajeshwar Prasad as appearing on the front lower right side at point C and his signatures as appearing at points C1 near the blue colour stamp of the above branch on these applications and he deposed that since in the official course of his duties, he had been tallying the signatures of their customers as appearing in different applications and the bank records, he can say that the signatures appearing at point C on the above applications are different as though the signatures appear to be similar in the beginning, but these differ in the end portion and they treated it as different signatures. He further deposed that similarly the signatures appearing at point C1 are also different, however, he also stated that the signatures appearing at points C and C1 on a particular application are matching with each other, though these are different from the signatures appearing at point C and C1 on the other application. He deposed that the signatures appearing at point C1 were put by the applicant at the time of filling up of the above applications and the signatures appearing at the point C were put by the applicant at the time of receiving of the pay orders handed over to the applicant against counter foil slips of the above applications.
3.12 Thereafter he was cross examined by Ld. SPP for the CBI as he was resiling from his earlier statement. During his cross-examination he admitted that when he was enquired by the CBI officer on 07.09.2009 and he handed over the above CC No. 102/2019 CBI Vs. Braham Parkash and ors 33/216 documents to the CBI, he was shown the above signatures of the applicant appearing on these applications. He stated that he does not now remember that at that time he had stated to the CBI officer that the above signatures of the applicant as appearing on the above two applications were of one and the same person, however he admitted that his statement was recorded by the CBI. i.e. Ex. PW9/C and he again stated that he had stated at that time that the above signatures appearing on these two applications were of the one and the same person. He admitted that due to the lapse of time, he was not able to recollect the above fact exactly.
3.13 PW-10 Shri Kamal Singh deposed that plot no. 11 in Pocket D, Phase-II, JJ Colony, Madanpur Khadar was purchased in the name of his mother Smt. Phoolwati who had expired in July 2006. He deposed that he was interrogated by CBI and vide seizure memo dated 02.02.2010 i.e. Ex. PW10/A (D42) he had handed over a file containing the entire chain of title documents i.e. Ex. PW10/B (colly) (D43) showing the transfer of said plot from the original allotee Sh. Devender s/o Sh. Dharampal to Sh. Rajwant Singh and from Sh. Rajwant Singh to his mother.
3.14 This witness was cross-examined by Ld. PP for the CBI as he was resiling from his earlier statement and he stated that his statement was recorded by CBI, however, he voluntarily stated that he does not know what they recorded. He admitted that he had told CBI that the said plot no. 11 was a vacant plot and after sometime, he had erected some structure on it and started a shop there for miscellaneous sale activities. He admitted CC No. 102/2019 CBI Vs. Braham Parkash and ors 34/216 that neither he nor any of his family members have met or seen the original allottee Devender S/o Dharampal. He then went on to deny all the suggestions given by Ld. PP for the CBI in terms of his statement u/s 161 Cr.P.C. i.e. Ex. PW10/1.
3.15 PW-11 Shri Yatish Chand Srivastava deposed that in May 2009, he was working as Manager at PNB, Mall Road Branch, Delhi and during that period, he had handed over two requisition/pay in slips to CBI vide which two pay orders/bankers cheques bearing nos. 719381 and 719382, both dated 27.09.02 of Rs.7000/- each were issued in favour of DDA vide seizure memo Ex. PW11/A. He further deposed that as per the aforesaid slips, the name of the party, who had applied for the said bankers cheques, is Rajeshwar Prasad R/o 1310, Mukherjee Nagar, Delhi.
3.16 PW-12 Shri Raghunandan Kumar deposed that plot no. 355, D Block, Phase-II, JJ Colony, Delhi admeasuring 12 sq. yard was purchased by his elder brother Sh. Ram Ujale for an amount of Rs. 85,000/- in his name but he does not know from whom it was purchased, as his brother had done the entire transaction and after purchasing the same he started residing therein. He deposed that he does not know any person by the name of Rajwant Singh. He deposed that he was interrogated by CBI and vide seizure memo dated 20.10.09 i.e. Ex. PW12/A (D20) he had handed over a file containing the entire chain of title documents i.e. Ex. PW12/B (colly) (D21) showing the transfer of said plot from the original allotee Smt. Hira Devi w/o Balkishan to Sh. Rajwant Singh and from Sh. Rajwant Singh to/in his name.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 35/216 3.17 Thereafter he was cross-examined by Ld. PP for the CBI as he was resiling from his earlier statement and he stated that his statement was recorded by CBI, however, he voluntarily stated that he does not know what they recorded. He went on to deny all the suggestions given by Ld. PP for the CBI in terms of his statement u/s 161 Cr.P.C. i.e. Mark PW12/1.
3.18 PW-13 Ashok Kumar deposed that plot no. 417, D Block, Phase-II, JJ Colony, Madanpur Khadar was purchased by him in the name of his wife Smt. Keshanta Devi against consideration amount of Rs. 1.30 lakh in cash, however, he does not know the name of the vendor of the said plot. He deposed that he does not know any Rajwant Singh and further deposed that vide seizure memo Ex. PW13/A (D-40), he had handed over a file containing the entire chain of title documents I.e Ex. PW13/B (colly) (D-41) showing the transfer of said plot from the original allottee Smt. Ganeshi Devi, W/o Sh. Jawahar Lal to Sh. Rajwant Singh and from Sh. Rajwant Singh to his wife Smt. Keshanta Devi.
3.19 Thereafter he was cross-examined by Ld. PP for the CBI as he was resiling from his earlier statement and he stated that his statement was recorded by CBI, however, he voluntarily stated that he does not know what they recorded. He went on to deny all the suggestions given by Ld. PP for the CBI in terms of his statement u/s 161 Cr.P.C. i.e. Mark PW13/1 and only admitted that neither he nor his family members had met or seen the original allottee Smt. Ganeshi Devi.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 36/216 3.20 PW-14 Manohar Lal deposed that in the year 2004, he had purchased plots no. 438 and 439, Pocket-D, Phase-II, Madan Pur Khadar, New Delhi in the name of his wife Smt. Krishna for an amount of Rs. 1,22,500/- each through his brother Sh. Chunni Lal to whom he had given the consideration amount of Rs. 2,45,000/- for both the aforementioned plots. He further deposed that subsequently plot no. 438 was got transferred in the name of his sister Smt. Yogmaya. He deposed that he handed over the document pertaining to said plot i.e. Ex. PW14/B (D-35) vide seizure memo dated 13.01.2010 Ex. PW14/A (D-34) to CBI and that he had also handed over documents Ex. PW14/D (colly) (pertaining to plot no. 439) to CBI and same were seized by CBI vide seizure memo dated 13.01.2010 Ex. PW14/C (D-36).
3.21 Thereafter he was cross-examined by Ld. PP for the CBI as he was resiling from his earlier statement and he stated that though CBI had interrogated him, however, his statement was not recorded by CBI. He went on to deny all the suggestions given by Ld. PP for the CBI in terms of his statement u/s 161 Cr.P.C. i.e. Mark PW14/1.
3.22 PW-15 Ram Sagar deposed that he had accompanied his relative Smt. Vidyavati W/o Sh. Ram Ujare to the CBI office and vide seizure memo dated 21.01.2010 Ex. PW15/A (D-32), Smt.Vidyawati had handed over certain documents, in his presence, to CBI i.e. documents Ex. PW15/B (colly) (D-33) pertaining to two plots bearing no. 7 and 34 JJ Colony, Madanpur Khadar, Delhi purchased by her husband from one Ganja Thakur.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 37/216 3.23 Thereafter he was cross-examined by Ld. PP for the CBI as he was resiling from his earlier statement and during his cross-examination, he went on to deny all the suggestions given by Ld. PP for the CBI in terms of his statement u/s 161 Cr.P.C. i.e. Mark PW15/1.
3.24 PW-16 Smt. Vidyawati deposed on the same lines as deposed by PW-15 Sh. Ashok Kumar qua Ex. Ex. PW15/A and Ex. PW15/B respectively 3.25 PW-17 Chhotey Lal deposed that he purchased plot no. 432 in the name of his wife Smt. Chameli and plot no. 433 in his own name for a total sum of Rs. 2.5 lakhs from one Neeraj Gupta who had met him at a tea stall in Madan Pur Khadar, Delhi and that he had handed over documents Ex. PW17/B (colly) (D39) pertaining to said plots to CBI vide seizure memo dated 12.01.2010 Ex. PW17/A (D-38).
3.26 Thereafter he was cross-examined by Ld. PP for the CBI as he was resiling from his earlier statement and during his cross-examination, he went on to deny all the suggestions given by Ld. PP for the CBI in terms of his statement u/s 161 Cr.P.C. i.e. Mark PW17/1.
3.27 PW-18 Abrar Ahmad deposed that he had purchased plot no. 595 in Pocket D, Phase-II, Madan Pur Khadar from Neeraj Gupta in the name of his wife Mrs. Shahin Praveen in the year 2006 and he had handed over documents Ex. PW18/B CC No. 102/2019 CBI Vs. Braham Parkash and ors 38/216 (colly) relating to the aforementioned plot vide seizure memo Ex. PW18/A to CBI.
3.28 Thereafter he was cross-examined by Ld. PP for the CBI as he was resiling from his earlier statement and during his cross-examination, he admitted that his statement was recorded by the CBI on 15.01.2010 and that he & his brother were allotted an 18 meter plot no. 885 in D Block, Phase-II, JJ Colony, Madanpur Khadar, Delhi which was insufficient for the family, however, he went on to deny all the other suggestions given by Ld. PP for the CBI in terms of his statement u/s 161 Cr.P.C. i.e. Mark PW18/1.
3.29 PW-19 Manmohan deposed that he had purchased Plot No. 581, Pocket-D, Phase-II, Madanpur Khadar, New Delhi from Sh. Praveen Kumar, in the year 2007-08 on the basis of GPA & some other documents, who also handed over to him the entire set of documents relating to the said plot. He further deposed that all the original documents pertaining to the said plot which includes the entire chain of title documents showing the transfer of said plot from the original allottee Sh. Jaipal S/o Sh. Pir Das to Sh. Rajwant Singh and from Sh. Rajwant Singh to Sh. Praveen Kumar and from Sh. Praveen Kumar to him i.e. Ex. PW19/B (colly) were handed over to CBI vide seizure memo Ex. PW19/A. 3.30 PW-20 Prem Sagar deposed that he had purchased plot no. 582, Pocket D, Phase-II, Madanpur Khadar in the year 2007-08 from Sh. Praveen Kumar S/o Sh. Chander Bhan. He CC No. 102/2019 CBI Vs. Braham Parkash and ors 39/216 further deposed that vide seizure memo Ex. PW20/A, he handed over one file containing the documents pertaining to said plot i.e. Ex. PW20/B (colly) to CBI. He deposed that said file was containing the entire chain of title documents showing the transfer of said plot from the original allottee Sh. Jugal Kishore S/o Sh. Prem Ram to Sh. Rajwant Singh and from Sh. Rajwant Singh to Smt. Sumita Devi and from Smt. Sumita Devi to Praveen Kumar.
3.31 PW-21 Ram Das deposed that he and his wife Smt. Ram Rati Devi had purchased two plots bearing no. D-II 346 & D-II 347 at JJ Colony, Madanpur Khadar, Delhi through Sh. Ram Ujere against consideration amount of Rs. 1 lakh each and that he had handed over the documents pertaining to the said plots i.e. Ex PW22/D and Ex. PW22/E (D-23) which includes the entire chain of title documents pertaining to said plots showing the transfer of said plots from the original allottee Sh. Om Prakash S/o Sh. Sangam Singh to Smt. Babita Aggarwal and from Smt. Babita Aggarwal to Smt. Ratik Devi to CBI vide seizure memo dated 20.10.2009 Ex. PW21/A (D-22).
3.32 Thereafter he was cross-examined by Ld. PP for the CBI and he went on to deny all the suggestions given by Ld. PP for the CBI.
3.33 PW-22 Bhagwan Sahai Aggarwal deposed that in the year 2004 he had purchased plots no. 364 & 365 at Madanpur Khadar, JJ Colony, D Block Phase-II for an amount of Rs. 65,000/- each from one Manoj who was a property dealer and he CC No. 102/2019 CBI Vs. Braham Parkash and ors 40/216 was still in possession of said two plots whereon, he had built up residential houses. He further deposed that he had handed over documents pertaining to aforementioned plots i.e. Ex. PW22/B & Ex. PW22/C respectively to CBI vide seizure memo dated 30.11.2009 Ex. PW22/A. He further deposed that in the same year, he had also purchased plots no. 346 & 347 at Madanpur Khadar, JJ Colony, D Block Phase-II from property dealer Sh. Manoj for Rs. 65,000/- each and subsequently sold the same to one person whose name he does not remember and deposed that Ex. PW22/D & Ex. PW22/E (D-23) respectively are the documents pertaining to said plots no. 346 and 347.
3.34 Thereafter he was cross-examined by Ld. PP for the CBI and he went on to deny all the suggestions given by Ld. PP for the CBI.
3.35 PW-23 A.K. Bajaj deposed that he has retired as Additional Director, CPWD & Engineer Member, DDA and that in July 2010 when he was posted as Engineer Member of DDA he had accorded sanction for the prosecution of accused Brahm Prakash under Section 19 of the PC Act, 1988 vide sanction order dated 07.07.2010 i.e. Ex. PW23/A. He deposed that he had granted sanction after applying his mind to the facts of the case and after going through the documents placed before him.
3.36 PW-24 Babita deposed that she is the wife of Sh. Bhagwan Sahai Aggarwal who had purchased one plot in her name at Madanpur Khadar and had got certain papers signed from her in this regard whose contents she is not aware of as she CC No. 102/2019 CBI Vs. Braham Parkash and ors 41/216 had not read the same. She identified her photographs & signatures on the documents i.e. Ex. PW22/B (D-19), Ex. PW22/C (D-19) , Ex. PW22/D (D-23) and Ex. PW22/E (D-23).
3.37 Thereafter she was cross-examined by Ld. PP for the CBI as she was resiling from her earlier statement and she went on to deny most of the suggestions given by Ld. PP for the CBI in terms of her statement u/s 161 Cr.P.C. i.e. Mark PW24/1.
3.38 PW-25 Rajinder Kumar deposed that the documents contained in file Ex. PW19/B (D-27) & File Ex. PW20/B (colly) (D-25) pertaining to plot no. 581 & 582 Pocket D Phase II JJ Colony, Madanpur were handed over to CBI by his brothers PW19 Sh. Manmohan & PW20 Sh. Prem Sagar.
3.39 Thereafter he was cross-examined by Ld. PP for the CBI as he was resiling from his earlier statement and he went on to deny the suggestions given by Ld. PP for the CBI in terms of his statement u/s 161 Cr.P.C. i.e. Mark PW25/1.
3.40 PW-26 Smt. Narayanai deposed that her husband & his elder brother had purchased plot no. 416, D Block, Phase- II, JJ Cluster, Madanpur Khadar, Delhi and she was only made to sign or affix her thumb impression on certain documents Ex. PW26/A pertaining to the said plot and that the said documents were handed over by her to CBI vide seizure memo dated 20.10.2009 i.e. Ex. PW26/B. 3.41 Thereafter she was cross-examined by Ld. PP for the CC No. 102/2019 CBI Vs. Braham Parkash and ors 42/216 CBI as she was resiling from her earlier statement and she went on to deny the suggestions given by Ld. PP for the CBI in terms of her statement u/s 161 Cr.P.C. i.e. Mark PW26/1.
3.42 PW-27 Mamta Devi deposed that she had signed certain documents pertaining to House No. D-443, Madanpur Khadar, Delhi which was purchased by her husband & brother- in-law and that she had handed over the said documents i.e. Ex. PW27/A pertaining to said plot to CBI vide seizure memo dated 20.10.2009 i.e. Ex. PW27/B. 3.43 Thereafter she was cross-examined by Ld. PP for the CBI as she was resiling from her earlier statement and she went on to deny the suggestions given by Ld. PP for the CBI in terms of her statement u/s 161 Cr.P.C. i.e. Mark PW27/1.
3.44 PW-28 Pappu deposed that plot no. D-419 JJ Colony, Madanpur Khadar was purchased in his name & plot no. D-420 JJ Colony, Madanpur Khadar in his wife's name and he had handed over the documents Ex. PW28/B (D-13) (colly) pertaining to the said plots to CBI vide seizure memo dated 20.10.2009 i.e. Ex. PW28/A (D-12).
3.45 Thereafter he was cross-examined by Ld. PP for the CBI as he was resiling from his earlier statement and he went on to deny the suggestions given by Ld. PP for the CBI in terms of his statement u/s 161 Cr.P.C. i.e. Mark PW28/1.
3.46 PW-29 Pradeep Kumar Miglani deposed that Sh.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 43/216 Ashok Malhotra is/was his brother in law as he was married to his sister Smt. Pushpa Malhotra and out of this wedlock four children were born. He deposed that Sh. Ashok Malhotra expired on 30.06.2016 and he denied having made any statement to CBI. This witness was cross examined by Ld. SPP for the CBI and during his cross-examination he denied having made statement dated 18.01.2009 i.e. Ex. PW29/1 as well as denied all the suggestions given by Ld. SPP for the CBI in terms of the said statement.
3.47 PW-30 Mohan Lal deposed that he knows Ashok Malhotra for the last 30-35 years and had met him when he used to sell milk opposite his house. He deposed that he had also worked as a guard with Ashok Malhotra and he used to pay him Rs.3,000/- - Rs.3,500/- per month. He further deposed that he used to work as a Guard from 10 AM to 2 PM, then from 7 PM to 11 PM and that his duty was at a gate of the house of Ashok Malhotra. He deposed that whenever any visitor came, he used to convey about the same and Ashok Malhotra then, after seeing the visitor on CCTV, instructed him accordingly to let the visitor in or not. He deposed that Ashok Malhotra used to ply auto earlier, thereafter, he started dealing in sale and purchase of properties. He deposed that Ashok Malhotra used to deal in properties in the areas of Mukherjee Nagar, Gandhi Vihar primarily and used to deal in properties of 25 sq. yards as well as 60 sq. yards in Gandhi Vihar. He deposed that 25 sq. yards properties in Gandhi Vihar in which Ashok Malhotra was dealing, could not have legally sold as these properties had been allotted with the pre- condition that they could not be sold further CC No. 102/2019 CBI Vs. Braham Parkash and ors 44/216 by the allottees. He deposed that he knows Mr. Chadha, Mr. Bharat Bhushan, M/s K. K. Property Dealer, Mr. Chindha as they used to assist Ashok Malhotra in sale purchase of properties, however, he stated that he does not know the modus operandi of Ashok Malhotra for purchase and sale of these properties. He deposed that Property No. 1325, First Floor, Mukherjee Nagar, Delhi, is a residential house where Ashok Malhotra used to visit and one Mr. Chander Arora used to live there. He deposed that he had put thumb impressions 10-15 times on some blank papers brought by some police officials for verification purpose on the asking of Ashok Malhotra. He deposed that there were other persons namely Pappi, Lalli, Rakesh and some others who were either servants of Ashok Malhotra or were working for him in some capacity who had also signed or given their thumb impressions on some occasions to said police officials. He deposed that in 2007, CBI had raided two houses bearing no. B- 59 and B-70 in his neighbourhood and also the residence of Mr. Chander Arora as well as his sister-in-law Rajni. He deposed that house no. B-59 was occupied by one Mr. Tilak Raj, B-70 was occupied by one Ms. Santosh and that he was at his residence at B-62 when the aforesaid raids were conducted. He deposed that he came to know about the raids as about 10-15 officials were there in his neighbourhood who had raided houses no. B-59 & B- 70 and there was commotion during which he came to know that CBI had raided the houses. He deposed that same came to his knowledge when he went to Mukherjee Nagar to deliver milk and around the same time, he came to know about CBI raid at Rajni's house also. He deposed that Ashok Malhotra already knew that CBI raids had taken place at the aforesaid premises CC No. 102/2019 CBI Vs. Braham Parkash and ors 45/216 and on the same day he left for Haridwar after informing Ashok Malhotra about the same. He deposed that CBI had also called him and had asked him to take the keys of his residence from their office after about 10 days of the raids. He deposed that he did not visit CBI office as they had not raided his house so there was no question of the keys of his house with them. He deposed that he was called by CBI again thereafter so he visited the CBI office where his statement was recorded in the present case in 2007. He identified his signatures on his statement, part of proceedings under Section 164 Cr.P.C i.e. Ex. PW30/A. Thereafter, this witness was cross-examined by Ld. PP for the CBI, however, he failed to support the prosecution case.
3.48 PW-31 Rambir Singh deposed that he was allotted a plot of 12.5 meters at Madan Pur Khadar in place of his jhuggi at Alaknanda Camp and that he had never seen the persons, whose photographs were pasted on 25 files of DDA i.e. Ex. PW22/F, in his vicinity at Alaknanda Camp and that none of them was residing at Alaknanda Camp. He further deposed that the persons whose photographs are pasted on the files Ex. PW28/B (colly), Ex. PW26/A, Ex. PW27/A, Ex. PW22/B and Ex. PW22/C, Ex. PW12/B (colly), Ex. PW22/D & Ex. PW22/E, Ex. PW20/B (colly), Ex. PW19/B (colly), Ex. PW18/B (colly), Ex. PW15/B (Colly), Ex. PW14/B (colly), Ex. PW14/D (colly), Ex. PW17/B (colly), Ex. PW13/B (colly) and Ex. PW10/B (colly) did not reside at Alaknanda Camp and he had never seen them there.
3.49 PW-32 Ram Chander Arora deposed that Ashok CC No. 102/2019 CBI Vs. Braham Parkash and ors 46/216 Malhotra (Since deceased) was known to him since the year 1985 as he used to accompany his father who used to get his clothes stitched from him. He deposed that he also worked with him in his canteen at Batra Cinema for about two years. He deposed that Ashok Malhotra was running canteen at Vidhan Sabha and he used to deal in properties, especially in MCD plots regarding which many cases were pending in the court. This witness was cross-examined by the Ld. PP for the CBI, as he was resiling from his previous statement and during his cross-examination, he admitted that CBI had interrogated him as well as recorded his statements on 26.11.2009 and 28.11.2009, however, he went on to deny the remaining suggestions given by the Ld. PP for the CBI in terms of his statement Mark PW32/1 and Mark 32/2 respectively.
3.50 PW-33 Vinod Kumar Bajaj deposed that he worked as Manager, UCO Bank, South Patel Nagar Branch, Delhi from January 2007 till July 2010. He deposed that for issuance of banker's cheque, customer has to fill-up the requisition slip/request form which is either supported by cash or a cheque of his or her account with the bank and in case of cash the customer has to give his full name, address & signature in the columns meant for that purpose but in both cases, the customer has to sign the requisition slip. He further deposed that vide production-cum-seizure memo Ex. PW6/A he had handed over one cash receipt voucher of Rs. 25,200/- dated 11.12.2002 to Inspector Hitender Adlakha and vide Ex. PW6/B he had handed over five Manager's Cheque/Banker's Cheque bearing nos. 150617 to 150621 all dated 11.12.2002 for a sum of Rs. 5,000/-
CC No. 102/2019 CBI Vs. Braham Parkash and ors 47/216 each i.e. Ex. PW6/D1 to Ex. PW6/D5 to Inspector Girish Bhardwaj. He further deposed that the five banker's cheques issued on account of Ex. PW6/C were paid for in cash and the name of the party who had applied & got the five banker's cheque Ex. PW6/D1 to Ex. PW6/D5 is Sh. Vinay Setia who was the Manager in the UCO Bank. He deposed that being the Senior Manager in UCO Bank, Sh. Vinay Setia was given the privilege and was not required to pay the commission for issuance of pay order or banker's cheque but in the instant case, Vinay Setia had paid the commission. He further deposed that no address, telephone no. or any other indication about the party/Vinay Setia who got the five banker's cheque is mentioned on Ex. PW6/C and that the amount in words and figures mentioned on Ex. PW6/C do not tally. He deposed that no receipt regarding delivery of the above five banker's cheque had been taken from the party.
3.51 PW-34 is Sh. Surjeet Singh deposed that he had worked in the grocery shop cum flour mill of Ashok Malhotra from 2006 to 2010 and was paid a salary of Rs. 10,000/- per month. He further deposed that he is aware about the names of two drivers of Ashok Malhotra i.e. Lalli and Chhanna, however, he is not aware about any other business concern of Ashok Malhotra nor he knows as to which DDA or MCD officials used to meet him. This witness also failed to support the prosecution case and was cross-examined by Ld. Senior PP for CBI. During his cross-examination he disowned his statement Mark PW34/1.
3.52 PW-35 Ms. Sadhana Manocha deposed that she CC No. 102/2019 CBI Vs. Braham Parkash and ors 48/216 retired as Manager, UCO Bank, West Patel Nagar, Delhi and that in the year 2002 she was posted as Clerk in the Shopping Complex, Patel Nagar Branch of UCO Bank. She deposed that the five pay orders/banker's cheque/manager's cheque Ex. PW6/D1 to Ex. PW6/D5 were made by her and the same were signed by Mr. P.K. Kapoor, the then Special Assistant and Mrs. Saroj Obi the then Assistant Manager of the bank. She deposed that Ex.PW6/D1 to Ex. PW6/D5 were issued against cash deposited by the buyer as per requisition slip Ex. PW6/C. She deposed that they were issued on the direction of the then Senior Manager. She further deposed that it is mandatory that the particulars of the party i.e. name, address, signatures etc. getting the pay orders/banker's cheque/manager's cheque/DDs is mentioned in the requisition slip particularly when the instruments are being issued against the cash so that the buyer of instrument can be identified and contacted if needed. She further deposed that it was the duty of the concerned staff who used to prepare the pay order/banker's cheque/DDs etc. and the officer who signed the same to ensure that the particulars were mentioned on the requisition slip before processing the same, however, in case if the requisition slip had the reference from the staff of bank/branch, the requirement regarding name, address, telephone, signature and receiving are/were by-passed. She further deposed that whenever a party getting a pay order/banker's cheque etc. issued is handed over the same then a receipt is taken on the back of the requisition/application with signatures as a token of having received the same, however, in the instant case, there is no receipt on the back of Ex. PW6/C regarding handing over of the pay orders Ex. PW6/D1 to Ex.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 49/216 PW6/D5.
3.53 PW36 Vinay Setia deposed that he worked as Manager at the UCO Bank, Patel Nagar Branch, Delhi from 2002 to 2005 and he knew Ashok Malhotra as he was his neighbour. He further deposed that Ashok Malhotra had availed two loans under the scheme of UCO Mortgage and after availing the loan, he never visited the branch. He further deposed that his driver namely Pappi used to visit the bank for the bank work. He further deposed that as per the requisition slip Ex. PW6/C, the amount for issuance of pay orders 150617 to 150621 Ex. PW6/D1 to Ex. PW6/D5 was paid in cash.
3.54 PW37 Vijay Pal Singh is/was the other Field Investigator who deposed that he alongwith FI Kushal Pal Malik had conducted the survey of jhuggi cluster of Alaknanda Camp. He deposed on the same line as deposed by PW-1 Sh. Kushal Pal Malik as how the survey was conducted and the procedure followed by DDA for resettlement of dwellers of JJ Cluster as per the guidelines issued by Ministry of Urban Development. He further deposed that the serial numbering of Alaknanda Camp jhuggis was done under the supervision of the then Assistant Director Sh. Paramjeet Singh who was then transferred from Land Management, South East Zone and in his place, Mr. Brahm Prakash joined as Assistant Director. He deposed that the survey of Alaknanda Camp was conducted under the supervision of Brahm Prakash, Assistant Director and the allotments were made by Brahm Prakash. He further deposed that the survey was completed in few working days and during the survey, they had CC No. 102/2019 CBI Vs. Braham Parkash and ors 50/216 serially numbered the jhuggis of Alaknanda Camp and same number was entered in the ration card of the jhuggi occupant. He further deposed that during the survey, a survey register was prepared by him and Sh. Kushal Pal Malik, the then Field Investigator and thereafter, the survey register was signed by him, Sh. Kushal Pal Malik and the then Assistant Director Brahm Prakash and the same was put up in the file of Alaknanda Camp by the then Assistant Director Brahm Prakash, whereafter, the file was put up before the higher officials for taking a decision regarding demolition and allotment of alternate plots. He further deposed that for allotment of plots, the eligible jhuggi dwellers of Alaknanda Camp were sent a demand letter signed by the then Assistant Director, Brahm Prakash, asking them to deposit fees and documents etc., which demand letters were prepared as per survey register. He further deposed that the demand letters were checked and signed by the then Assistant Director Brahm Prakas and after depositing the required documents, they were annexed to the respected demand letters (copies). He further deposed that the receiving clerk put the stamp of DDA mentioning therein, details of the drafts deposited by the jhuggi dwellers. He further deposed that the draw of plots was conducted at the site of Alaknanda Camp at the time of demolition, plots numbers were alloted to the jhuggi dwellers. He further deposed that slips containing plots numbers, plot area, plot address were made and pasted on sheets which were attached to the respective demand letters and bunch of the papers submitted by the particular jhuggi dwellers. He further deposed that the file number as mentioned in the demand letter was also written on the said sheet. He further deposed that thumb CC No. 102/2019 CBI Vs. Braham Parkash and ors 51/216 impressions of the allottees were also taken on the said slips pastes on the said sheet and on the original demand letter, the alloted plot number and address were written which was duly signed and stamped by the Assistant Director. He further deposed that in the case of Alaknanda Camp, it was signed by the then Assistant Director Brahm Prakash and was given to the jhuggi dwellers. He further deposed that entry of the file number, name, jhuggi number of the allottee and the alloted plot number were also made in the allotment register. He further deposed that the thumb impression of the allottee was also taken in the allotment register and all this procedure was conducted side by side with the demolition. He further deposed that the entire residents of Alaknanda Camp were relocated in Madanpur Khadar. He deposed that the survey list of Alaknanda Camp Mark PW1/1 to Mark PW1/4 were prepared by him (PW37) and Kushal Pal Malik in their respective handwriting and that in the survey list Mark PW1/1, entires at serial no. 24/1 at Q397 to Q399, serial no. 39/1 at Q399A and Q399A/1, serial no. 74 at Q400 and Q401, serial no. 121/1 at Q402 and Q403, serial no. 164/1 at Q403A and Q403A/1 and serial no. 202/1 at Q404 to Q406 were/are not in his handwriting. He further deposed that in survey list Mark PW1/2, entires at serial no. 1173/1 at Q414 and serial no. 1226/1 at Q415 are/were not in his handwriting. He further deposed that in survey list Mark PW1/3, entires at serial no. 1376/1 at Q407, serial no. 1396/2 at Q408, serial no. 1432/1 at Q409, serial no. 1577/1 at Q410 to 412, serial no. 1605/1 at Q413 are/were not in his handwriting. He further deposed that in the survey list Mark PW1/4, entires at serial no. 1723/1 at Q416, serial no. 1757/1 at Q417, serial no. 1763/1 at Q418, serial no.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 52/216 1767/1 at Q419, serial no. 1774/1 at Q420, serial no. 1892/1 at Q421, serial no. 1929/1 at Q422, serial no. 1942/1 at Q423, serial no. 1979/1 at Q424, serial no. 1995/1 at Q425, serial no. 2000/1 at Q426 and serial no. 2031/1 at Q427 are/were not in his handwriting. He identified the DDA file Ex. PW46/A3 (D-5) and deposed that as per para 5 and 6 of the undertakings, it is mentioned that if any information is found to be false, then allotment can be canceled. He deposed that D-8 to D-11 which are copies of the original survey register that is done by him & Mr. Kushal Pal Malik in the concerned area and that the survey report bears signatures of Kushal Pal Malik at point A, his signatures at point B and signatures of accused Braham Prakash at point C on the last page of D-11. He deposed that D-8 to D-11 are survey report in continuation and that copies of the original survey register are prepared in his office for the purpose of relocation of the jhuggi cluster and further proceedings. He further deposed that in Column no. 10 of the survey register entries are made in original. He further deposed that while working as Field Investigator, when they found that concerned jhuggi is locked, they wrote 'locked' against the serial number of concerned jhuggi and that in this case no re-survey was conducted. He identified the signatures of accused Braham Prakash at point A on page 17-N of Ex. PW47/A-5 (Colly) (D-
46) i.e. the official file of DDA regarding relocation of the jhuggi cluster located at Alakhnanda area and deposed that in this notesheet, in the last para, he had mentioned that it is required to send list of the eligible JJ dwellers holding the ration card to get them verified from the Food and Supply Department for the purpose of relocation. He deposed that thereafter, he has written CC No. 102/2019 CBI Vs. Braham Parkash and ors 53/216 on the notesheet that " a list of ration cards number alongwith the date of J.J.Dwellers of Alakhnanda Camp has been prepared and relocated alongside for concerned transmission to the Food Civil Supply Department to get verified from their records about there genuineness is added for signatures please" and it bears his signatures at point B. He deposed that accused Braham Prakash called him in chamber and told him to prepare demand letter and told him that it is not him job to verify the genuineness and thereafter, no verification of the documents was done. He deposed that page no. 33 and the end of the notesheet bears the signature of accused Braham Prakash at point A as Assistant Director (Survey) South East Zone and page no. 34N bears signature of OSD Vinay Bhushan at point A and page no. 34N and end page of the notesheet bears signature of Land Management Commissioner at point B vide which he had called explanation from accused Braham Prakash to explain as to on what basis he (accused Braham Prakash) asserted in para no. 3 at point A on page no. 32N and that there is no explanation on the record on behalf of accused Braham Prakash. He deposed that files D-13, D-15, D-17, D-19, D-23, D-21, D-25, D-27, D-29, D- 31, D-33, D-35, D-37, D-39, D-41, D-43, contain originals of various demand letters, allotment letters, Delhi Administration I- cards, GPAs and copies of the demand drafts, copies of the allotment of different plot numbers in the name of different persons and some of the demand letters are dated 04.12.2002 and some are dated 02.12.2002. He deposed that these demand letters bear the signature of accused Braham Prakash, on the back side, dated 13.12.2002 and he had written plot numbers in his handwriting on each demand letters. He further deposed that Ex.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 54/216 PW-46/A5 (Colly) D-7 is the allotment register maintained in DDA office by accused Braham Prakash and in this register, allotment entries are made from 04.12.2002 onwards. He deposed that as per record, demand letters were issued on 04.12.2002 and 02.12.2002, requests were received from allottees on 16.12.2002 alongwith the required documents notarized on 12.12.2002. He deposed that allotment letters are issued on 13.12.2002 and it is not possible that allotment letters are issued before receiving the documents with draft.
3.55 PW38 Sh. Ram Niwas Goel is/was the Field Investigator Land Management, South East Zone DDA who retired in 2013. He deposed that the main job of the Field Investigator was to conduct survey of unauthorized jhuggi cluster, unauthorized settlements and carry out demolition when ordered by the department and the survey was conducted under the direct supervision of Assistant Director. He deposed that for relocation or settlement of a jhuggi cluster, a new file is opened through which the project is initiated and all the correspondence papers etc. related to the said scheme are dealt with through this file. He deposed that Field Investigators prepare the survey register which is signed by them and the concerned Assistant Director, who puts the same in the file/project. He deposed that then the file is further put up to higher officers for taking decision regarding demolition and allotment of alternate plots etc. He deposed that for allotments of plots, the eligible jhuggi dwellers are sent a demand letter signed by the Assistant Director asking them to deposit license fees and documents etc. which demand letters are prepared as per the survey register under instructions CC No. 102/2019 CBI Vs. Braham Parkash and ors 55/216 and supervision of the concerned Assistant Director, Survey. He deposed that on the demand letters, name, father name and the jhuggi address of the dwellers and required license fees are written and separate file numbers are given on each demand letter and the demand letters are checked & signed by the concerned Assistant Director. He deposed that after depositing the above license fees & documents by the jhuggi dwellers, they are annexed with the respective demand letters and the receiving clerk puts the stamp of DDA and date of receipt mentioning therein details of the drafts deposited by the jhuggi dwellers. He deposed that the allotment of plots is made under the direct supervision of Assistant Director concerned. He deposed that in case a jhuggi is found locked during the survey, the serial wise entry is made in Survey Register and in case if any jhuggi is left out in the survey due to any reason, the resident of that jhuggi makes representation to Commissioner/Director (Land Management) or above authorities and thereafter the same is sent through proper channel to the concerned Field Investigator who had conducted the survey to verify whether or not the entry of such person is not in the Survey Register and whether he has been left out. He deposed that after checking the Survey Register and conducting the verification of the premises, concerned Field Investigators submit their report to concerned Assistant Director and if the said jhuggi is found in existence with record concerned then Higher Authorities constitute a team to verify the same. He deposed that in such cases, the entry of such jhuggi is made either in a separate list or at the end of the Survey Register, but no such entries can be inserted in between the entries in the Survey Register already made and no interpolation is made and CC No. 102/2019 CBI Vs. Braham Parkash and ors 56/216 the Survey Register is never tampered with.
3.56 PW39 Sh. Paramjit Singh deposed that he retired as Director (Survey) from Delhi Development Authority (DDA) in November 2016 and from June 1999 to 2002, he was posted as Assistant Director in LM, South East Zone and was also posted as Deputy Director in LM, South East Zone and South West Zone during the year 2009 for about 9 months. He deposed that LM, South East Zone was headed by Deputy Director and apart from that, Assistant Directors, Tehsildars, Revenue Staff and Field Investigators etc. were also part of it. He deposed that during 2002 and 2003, the Deputy Director was Mr. J. R. Kakkar in LM, South East Zone and after his transfer from LM, South East Zone in June 2002, Mr. Brahm Prakash took over the charge of Assistant Director, LM, South East Zone. He deposed that in June 2002, Sh. B. G. Singh, Sh. Kushal Pal, Mr. Joshi, Mr. Jai Prakash and some others, whose names he does not remember now, were the Field Investigators, LM, South East Zone. He deposed that the main duties of the Field Investigators are to conduct survey of jhuggis and collect the detailed informations of the occupiers such as details of ration cards, number of family members, details of election I cards and marking the temporary numbers of jhuggis of the said cluster and record the said details in survey register. He deposed that the survey used to be conducted by the Field Investigators under the direct supervision of Assistant Director. He deposed that for resettlement of a jhuggi cluster, a new file is opened for the said project, through which the survey is initiated and all correspondences, papers etc. related to the said project are dealt with through that file. He CC No. 102/2019 CBI Vs. Braham Parkash and ors 57/216 deposed that as far as the procedure for relocation of jhuggi cluster is concerned, first of all the Field Investigators put temporary serial numbers on the individual jhuggis starting from serial number 1 to onwards till the end of last jhuggi and thereafter, survey of each jhuggi is conducted and detailed entries are made serial wise in the survey register in respect of each jhuggi in which name of the head of the family, parentage, jhuggi number, ration card number, number of family members as given in the ration card, Delhi Administration I card and voter I card number are entered in the survey register. He deposed that if any jhuggi is found locked, then the space alongside its serial number is left blank and in the last column it is mentioned 'locked'. He deposed that the Field Investigators prepare the survey register, which is signed by them and countersigned by the concerned Assistant Director and after completion of the survey, the survey register is submitted to higher officers for taking a decision regarding relocation of JJ cluster. He further deposed that alaknanda JJ Cluster/Camp falls under the jurisdiction of Land Management, South East Zone, DDA and the decision to relocate Alaknanda JJ Cluster was taken by the competent authority in the year 2000, though he is not sure about the exact year. He deposed that being Assistant Director, LM, South East Zone, he was instructed to initiate the procedure of relocation of Alaknanda JJ Camp and the process for survey to relocate Alaknanda JJ Camp was assigned to Sh. Vijay Pal and Sh. Kushal Pal Malik. He deposed that the serial numbers on the jhuggis of Alaknanda JJ Camp by the Field Investigators was put under his supervision as Assistant Director and the rest of survey work was done under the supervision of Mr. Brahm Prakash, who CC No. 102/2019 CBI Vs. Braham Parkash and ors 58/216 had joined as Assistant Director after his transfer. He deposed that after completion of survey, the demand letters were required to be prepared on the basis of information recorded in the survey registers by the Field Investigators and submitted to the Deputy Director for information and thereafter demand letters were signed by the Assistant Director. He deposed that on the demand letters, name and address of the jhuggi and specific terms and conditions for relocation are mentioned on the body of each and every demand letter. He deposed that after the demand letters were issued to the jhuggi dwellers, the jhuggi dwellers deposit the required fees through demand draft in favour of DDA alongwith required documents such as attested copy of ration card, attested copy of Delhi Administration I card, attested photocopy of election I card, photograph and required affidavit and undertaking to DDA. He deposed that by the draw of lots, plot numbers are alloted to the jhuggi dwellers. He deposed that slip containing the plot number with the thumb impression/signature of the allottee was pasted on the allotment file of the individual jhuggi dweller and the allotment is made, done under the direct supervision of the concerned Assistant Director. He deposed that vide Mark PW1/1 to Mark PW1/4 the survey of Alaknanda JJ Cluster was conducted under the jurisdiction of LM, South East Zone and was conducted under the supervision of the then Assistant Director Brahm Prakash. He deposed that after submission of required documents, alongwith demanded fees, it is the duty of the Field Investigator to verify the genuineness of the documents submitted by the individual jhuggi dweller and the verification is done under the supervision of Assistant Director. He deposed that without verification of the CC No. 102/2019 CBI Vs. Braham Parkash and ors 59/216 documents submitted by the jhuggi dwellers, no allotment of plot can be made to the jhuggi dweller. He deposed that in case any jhuggi is left out in the survey, then the resident of that jhuggi makes a representation, alongwith his relevant eligibility documents, to the Deputy Director or Assistant Director and thereafter, the same is marked to concerned Field Investigator who had conducted the survey, to verify the genuineness of the claim. He deposed that after verification of the relevant eligibility documents from the concerned issuing authority, the Field Investigators submit their report to Assistant Director and if the said jhuggi is found in existence/ eligible for relocation, a demand letter can be issued to the jhuggi dweller by the concerned Assistant Director. He deposed that in such cases, the entries of the such jhuggi are made in the end of the survey register duly signed by the Field Investigators and countersigned by the concerned Assistant Director. He deposed that in case large number of persons are left out or make complaints then the survey is declared as cancelled by the orders of the competent authority and resurvey is ordered. He deposed that in case if a survey is cancelled due to large number of complaints, disciplinary action is taken against the concerned Field Investigators and the Assistant Director. He deposed that as per Note 17-N of Ex. PW47/A5 collectively (D-46), for the purpose of relocation, the ration cards of the eligible JJ Dwellers were required to be verified from Food and Civil Supply Department. He also identified signatures of accused Braham Prakash on Notes N-32 & N-33 and that of Sh. Vinay Bhushan, the then Director as well as of the Commissioner on Note 34-N and deposed that he had joined investigation of this case and his CC No. 102/2019 CBI Vs. Braham Parkash and ors 60/216 statement was recorded by CBI officials with regard to the facts of the present case.
3.57 PW40 Sh. Jeet Singh is the retired Sr. Scientific Officer (Documents), CFSL who deposed that questioned documents Q958 to Q1121, Q1122A, Q1122B, Q1123, to Q1158, Q1139A and Q1151A, the specimen documents marked S1 to S56 and admitted documents Mark A1 to A5 were forwarded by SP, CBI, ACB, New Delhi vide letter dated 03.02.2014 No. 1446/RC-55(A)/2008/CBI/ACB/New Delhi and letter no. 3846/RC-55(A)/2008 dated 24/25.3.2015 to Director, CFSL for forensic examination. He further deposed that vide his report bearing No. CFSL-2014/D-180 dated 28.11.2014 Ex. PW40/A and forwarding letter of Dr. Rajender Singh, the then Director CFSL dated 02.12.2014 i.e. Ex. PW40/B he had asked for further material from SP, CBI, ACB New Delhi. He proved his report bearing No. CFSL-2015/D-406 dated 20.4.2015 as Ex. PW40/C and the forwarding letter of Dr. Rajender Singh, Director, CFSL dated 06.5.2015 vide which the report was sent to SP, CBI ACB New Delhi as Ex. PW40/D. He further deposed that vide forwarding letter dated 03.02.2014 i.e. Ex. PW40/E (colly) certain documents annexed with the said letter as Annexures A,B,C and D were received by Director CFSL from D.K. Barik, SP, CBI for expert opinion in case RC 55(A)/2008/DLI. He further deposed that vide forwarding letter DLI/RC 55 (A)/08 DLI/3914 dated 15.3.2010, the questioned documents as per Annexure C and the specimen documents marked S1 to S85 were also sent to Director, CFSL by SP, CBI, ACB, Lodhi Road, New Delhi for examination. He deposed that he had carefully CC No. 102/2019 CBI Vs. Braham Parkash and ors 61/216 examined the documents of this case with the help of video spectral comparator-5000, twin video comparator, stereo zoom microscope, magnifying glasses and after applying the principles of handwriting examination, he expressed his opinion and gave the detailed scientific reasoning of his opinion in para 7(i)(ii)(iii) and (iv) of his handwriting examination report no. CFSL- 2010/A-194 dated 28.02.2011 i.e. Ex. PW40/F which was sent to Superintendent of Police, CBI, ACB, New Delhi vide forwarding letter dated 07.03.2011 i.e. Ex. PW40/G. He further deposed that vide forwarding letter dated 15.03.2010 i.e. Ex. PW40/H (colly) certain documents annexed with said letter as Annexure A, B and C were sent to Director CFSL, New Delhi by CBI for examination and opinion in RC No. 55(A)/08/DLI and that all the said questioned documents Q1 to Q957 and specimen documents S1 to S85 were examined by him in RC No. 55(A)/08/DLI and he gave his report as Ex. PW40/F. 3.58 PW 41 Sh. Chander Jeet Arora proved the search cum seizure memo dated 01.08.2007 as Ex. PW41/A and deposed that the said documents were kept in his premises by Ashok Malhotra. He also proved his statement dated 30.08.2007 recorded under Section 164 Cr.P.C as Ex. PW41/B. 3.59 PW42 Sh. Rakesh Bisht is Principal Scientific Officer, CFSL who proved his report Ex. PW42/B regarding the questioned photographs on 17 Delhi Administration Cards i.e. Q428, Q437, Q446, Q469, Q653, Q674, Q694, Q714, Q734, Q771, Q798, Q824, Q853, Q860A, Q879, Q897 and Q917 received by him vide Ex. PW42A. He also proved the forwarding CC No. 102/2019 CBI Vs. Braham Parkash and ors 62/216 letter vide which the report was sent to CBI as Ex. PW42/C. He deposed that on the basis of visual and physical examination i.e. sharpness of facial features, depth of field in photographs, contrast in photographs, background, shadow details, characteristics of photo paper of the photographs and other details it appears that these photographs may have been prepared from the negatives.
3.60 PW43 Inspector D.K. Thakur deposed that in the year 2007-08 he was posted as Inspector, CBI ACB New Delhi and pursuant to search authorization issued by Inspector Raj Singh, who was the IO of RC DAI 2007(A) 0025, he had conducted search & seizure at the residential premises of Mohan Lal @ Mone at B-59, Nehru Vihar, New Delhi vide search cum seizure memo dated 01.08.2007 i.e. Ex. PW43/A during which large number of incriminating documents as reflected therein were recovered.
3.61 PW44 Inspector Raj Singh deposed that in the year 2008, he was posted as Inspector in CBI, ACB, Delhi. He proved on record the receipt memo dated 27.04.2009 i.e.Ex. PW44/A (colly) vide which, he handed over certain documents mentioned therein to the then Inspector Hitender Adlakha on 27.04.2009. He also proved two other receipt memos dated 12.11.2009 i.e. Ex. PW44/B (colly) and dated 17.12.2009 i.e.Ex. PW44/C (colly) vide which he handed over the documents mentioned therein to Inspector Girish Bhardwaj.
3.62 PW45 Sh. Vivek Piyadarshini, AIG (Policy), CBI CC No. 102/2019 CBI Vs. Braham Parkash and ors 63/216 deposed that after seizure of large number of documents from certain premises in RC No. 25(A)/2007 & 34(A)/2007, a preliminary inquiry no. PE DAI 2008(A) 0002 was registered on 10.05.2008 which was entrusted to him for inquiry and during the inquiry bunch of papers relating to Alaknanda Camp, Resettlement Scheme containing details of around 25 plots in Madanpur Khadar were found. He deposed that the said plots were allocated on the basis of fake ration cards, Delhi Administration I-Cards and other official records. He further deposed that on the basis of aforementioned preliminary inquiry, a complaint dated 22.12.2008 i.e. Ex. PW45/A regarding allotment of 25 plots in Alaknanda Camp, Resettlement Scheme at Madan Pur Khadar, Delhi was lodged by him with SP, CBI, New Delhi for registration of regular case under Section 120B r/w 13(2) and 13(1)(d) of PC Act, 1988 and Sections 420/468/471 IPC.
3.63 PW46 Inspector Hitender Adlakha deposed that in the year 2008 he was posted as Inspector ACB CBI Delhi and on the basis of the complaint Ex. PW45/A lodged by Sh. Vivek Priyadarshni, the then ASP, present FIR i.e. Ex. PW46/A1 was registered on 22.12.2008 against accused Braham Prakash, Ashok Malhotra and Lal Mani under Section 120B r/w 13(2) & 13(1)(d) of PC Act 1988 and Sections 420/468/471 IPC which FIR was assigned to him for the purpose of investigation. He further deposed that vide seizure memo dated 26.02.2009 i.e. Ex. PW46/A2, he seized files Ex. PW46/A3 (colly) mentioned therein at serial no. 1 to 25 from Kanhiya Lal. He further deposed that vide the above seizure memo he had also seized one register CC No. 102/2019 CBI Vs. Braham Parkash and ors 64/216 titled as "Alaknanda 12.5 square meter to Madan Pur Khadar i.e. Ex. PW46/A4 (colly). He deposed that a register titled as "Delhi Vikas Pradhikaran allotment of 18 square meter" i.e. Ex. PW46/A5 (colly) was also seized by him vide seizure memo Ex. PW46/A2. He deposed that vide the said seizure memo he had also seized photocopy of spiral binding papers titled as "Alaknanda Camp 1", "Alaknanda 2", "Alaknanda 3" and "Alaknanda 4" i.e. Mark PW1 to Mark PW4. He further deposed vide seizure memo Ex. PW11/A (colly) dated 08.05.2009 documents Ex. PW46/A6 and Ex. PW46/A7 i.e. drafts/MT application forms and cash orders of Rs. 7000/- each dated 27.09.2002 respectively were seized by him from Sh. Y.C. Srivastava, Manager, PNB, Mall Road, Delhi. He deposed that during investigation, vide seizure memo dated 06.05.2009 i.e.Ex. PW46/A8 (also marked as Mark 7/1), he had seized application for mail transfer/pay order of Rs. 7,000/- each dated 27.09.2002 i.e. Ex. PW46/A9, Ex. PW46/A10 and Ex. PW46/A11 from Sh. Ashok Kumar, Senior Manager, Bank of Maharashtra, Dr. Mukherjee Nagar Branch, Delhi. He further deposed that vide another seizure memo dated 01.05.2009 i.e. Ex. PW46/A12, requisition slip pertaining to the bank draft no. 912048 dated 28.09.2002 of State Bank of India i.e. Ex. PW46/A13 was seized by him from Sh. Mohinder Singh, Chief Manager, State Bank of India, Old Secretarial, Delhi. He further deposed that vide seizure memo dated 06.05.2009 i.e. Ex. PW6/A, cash receipt voucher of Rs. 25,200/- dated 11.12.2002 of UCO Bank i.e. Ex. PW6/C was seized by him from Sh. V.K. Bajaj, UCO Bank Shopping complex, South Patel Nagar, New Delhi. He also deposed that he had also taken specimen handwriting/signatures of several CC No. 102/2019 CBI Vs. Braham Parkash and ors 65/216 persons and Vijay Pal had given his specimen handwriting/signatures from pages 55 to 68 i.e. Ex. PW46/A14 (colly) voluntarily in the presence of independent witness Sh. R.C. Morwal, Senior Manager, Bank of Baroda and similarly K.P. Malik had also given his specimen handwriting/signatures from pages 69 to 79 i.e. Ex. PW46/A15 (colly) voluntarily in the presence of the above witness.
3.64 PW47 Inspector Girish Bhardwaj deposed that in the year 2009 he was posted as Inspector in CBI ACB, New Delhi and during investigation of this case, he had recorded the statement under section 161 Cr.P.C. of number of witnesses i.e. PW Ram Lal Balmiki as Ex. PW9/C, Kamal Singh as Mark PW10/1, Ashok Kumar as Mark PW13/1, Raghunand Kumar as Mark PW12/1, Manohar Lal as Mark PW14/1, Abrar Ahmad as Mark 18/1, Chhotey Lal as Mark PW17/1, Ram Sagar as Mark PW15/1, Rajender Kumar as Mark PW25/1, Narayani Devi as Mark PW26/1, Babita Aggarwal as Mark PW24/1, Pappu as Mark PW28/1, Mamta Devi as Mark PW27/1, Mohan Lal @ Mone as Mark PW30/1, Surjeet Singh as Mark PW34/1, Ram Chander @ Masterjee as Mark PW31/1 & Mark PW32/1, Pradeep Miglani as Mark PW29/A1 and Sudhanshu Mishra as Ex. PW3/A. He deposed on the same lines about registration of FIR and seizure of documents as was deposed by PW44 & PW46 and further deposed that he had also seized documents Ex. PW28/A, Ex. PW28/B, Ex. PW26/B, Ex. PW26/A, Ex. PW27/B, Ex. PW27/A, Ex. PW22/A, Ex. PW22/B, Ex. PW22/C, Ex. PW12/A, Ex. PW12/B, Ex. PW21/A, Ex. PW22/D, Ex. PW22/E, Ex. PW20/A, Ex. PW20/B, Ex. PW19/A, Ex. PW19/B, Ex.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 66/216 PW47/A1, Ex. PW47/A2, Ex. PW18/B, Ex. PW15/A, Ex. PW15/B (colly), Ex. PW14/A, Ex. PW14/B, Ex. PW14/C, Ex. PW14/D, Ex. PW13/A, Ex. PW13/B, Ex. PW10/A, Ex. PW10/B and Ex. PW2/A from Sh. Pappu, Sh. Ramesh Chand & Cheti Devi, Smt. Narayani, Smt. Smt. Shanti Devi, Smt. Mamta, Sh. Bahadur, Sh. Bhagwan Sahay, Sh. Chander Pal, Sh. Raghunandan Kumar Gupta, Smt. Hira Devi, Sh. Ram Dass Gupta, Sh. Om Parkash, Sh. Mohd. Hadhish, Sh. Prem Sagar, Sh. Jugal Kishore, Sh. Manmohan, Sh. Jaipal, Sh. Neeraj Gupta, Sh. Ram Lal & Smt. Dippi Devi, Sh. Abrar Ahmed, Smt. Barpai, Smt. Vidyawati, Sh. Satyawan & Sh. Badul Ram, Sh. Manohar Lal, Sh. Jagdish, Sh. Manohar Lal, Smt. Sunita Devi, Sh. Ashok Kumar, Smt. Ganeshi Devi, Sh. Kamal, Sh. Devender, Sh. Iqbal Singh respectively.
He deposed that vide seizure memo Ex. PW17/A the documents mentioned therein were seized by Insp. Rajesh Chahal from Sh. Chote Lal, vide seizure memo Ex. PW17/B documents were seized by CBI and vide seizure memo Ex. PW11/A documents mentioned therein were seized by Insp. Hitender Adlakha. He further deposed that vide seizure memo Ex. PW9/A he had seized documents Ex. PW9/B from Sh. Ram Lal Balmiki and vide seizure memo Ex. PW8/A he had seized documents Ex. PW8/B from Sh. R.P. Dobhal. He also deposed that vide seizure memo dated 08.09.2009 i.e. Ex. PW47/A3 the requisition slips/application forms for issuance of Banker's Cheque by UCO Bank i.e. Ex. PW47/A4 (colly) were seized by him from Sh. Charan Jeet Singh. He deposed that vide seizure memo dated 06.05.2009 Ex. PW46/A8 documents Ex PW46/A9 to A11 were seized by Insp. Hitender Adlakha from Sh. Ashok Kumar and CC No. 102/2019 CBI Vs. Braham Parkash and ors 67/216 Insp. Hitender Adlakha had also seized documents Ex. PW46/A13 from Sh. Mahender Singh vide seizure memo Ex. PW46/A12 dated 01.05.2009. He further deposed that vide seizure memo dated 06.05.2009 Ex. PW6/A documents Ex PW6/C were seized by Insp. Hitender Adlakha from Sh. V.K. Bajaj. He deposed that vide seizure memo dated 07.12.2009 Ex. PW6/B documents Ex PW6/D1 to D5 were seized by him from Sh. V.K. Bajaj. He deposed that Mark PW47/1 (colly) is the policy guidelines of DDA for relocation of jhuggi clusters in Delhi and file no. 11(54)/2001/LM/SEZ i.e. Ex. PW47/A5 (colly) is regarding relocation of Jhuggi Clusters located between Arawali and Madakani Apartment, Alaknanda which were seized by CBI during investigation. He identified letter dated 12.10.2009 i.e. Ex. PW5/A as was written by him to Food & Supplies Officer, Sector 51, Kalkaji, New Delhi and the reply dated 13.10.2009 i.e. Ex. PW5/B that he had received. He further deposed that vide receipt memos dated 27.04.2009 i.e. Ex. PW44/A and 12.11.2009 i.e. Ex. PW44/B the documents mentioned therein, as were seized during the course of investigation of RC 25(A)/2007/DLI, were received. He further deposed that vide receipt memo dated 25.11.2009 i.e. Ex. PW47/A6 (colly), documents mentioned therein were received by him from Inspector P.K. Srivastava and vide receipt memo dated 18.03.2010 Ex. PW47/A7 (colly), documents mentioned therein were received from Inspector Raj Singh. He further deposed that letter dated 15.03.2010 i.e. Ex. PW40/H was addressed to the Director CFSL by the then SP CBI ACB Sh. Sumit Saran regarding examination of documents, furnishing of fingerprint, handwriting and photographic opinion in the present CC No. 102/2019 CBI Vs. Braham Parkash and ors 68/216 case. He further deposed that letter dated 17.03.2010 i.e. Ex. PW47/A8 (colly), was sent by Sh. Sumit Saran, SP, CBI, ACB, Delhi to Director, CFSL, CBI regarding examination of documents and furnishing of fingerprints, handwriting and photographic opinion and file Ex. PW47/A9 (colly) containing specimen fingerprints and handwritings were collected/obtained from different persons during investigation and were sent to CFSL for examination and expert opinion. He deposed that specimen fingerprints of Lal Mani, Rajender Singh, Mohan Lal @ Monne, Darshan Lal, Ram Chander @ Masterjee, Ravinder Singh Sandhu, Surjeet Singh, Pradeep Miglani, Surender Kumar @ Chana and Ashok Malhotra were obtained by the CFSL official in his presence. He further deposed that specimen handwriting/signatures were voluntarily given by Braham Parkash, Lal Mani, R.S. Sandhu, Surjeet Singh, Rajeshwar Prasad and Ashok Malhotra before him and that vide letter no. 4156 dated 06.08.2010 i.e. Ex. PW47/A10 (colly) CBI had received CFSL opinion in the present matter.
3.65 PW48 Sh. P.K. Srivastava, DSP, CBI, Delhi deposed that while he was the Holding Investigating officer of RC No. 34(A)/2007 statement under Section 164 Cr.P.C of Sh. Ravinder Singh Sandhu was got recorded by IO Insp. D.K. Thakur before the Ld. Metropolitan Magistrate on 31.08.2007 and he handed over the photocopy of the proceedings u/s 164 Cr.P.C. to Insp. Girish Bhardwaj vide receipt memo dated 25.11.2009 i.e. Ex. PW47/A6 (colly).
3.66 PW49 Sh. A.D. Shah, Retired Principal Scientific CC No. 102/2019 CBI Vs. Braham Parkash and ors 69/216 Officer deposed that vide letter no. DLI/RC 55(A)/08/DLI/3914 dated 15.03.2010 and letter no. DLI/RC 55(A)/08/DLI/4074 dated 17.03.2010 i.e. Ex. PW40/H (colly) SP, CBI had forwarded questioned documents Q1 to Q558 and Q589 to Q873, Q854A to Q873A, Q874 to Q957 (except Q660 and Q905) and specimen writing/signatures while specimen fingerprint impression slips mark as S-1 to S-85 and SF-1 to SF-33 and specimen fingerprint slips mark as SF-34 to SF-36 were received in unsealed condition for comparison and opinion and same were marked to him by Finger Print Division on 17.3.2010 and 18.3.2010 respectively. He further deposed that after examining the aforementioned questioned and specimen writings/signatures, he submitted his report Ex. PW47/A10 (colly) to Dr. Rajender Singh, Director, CFSL who forwarded the same to SP, CBI, ACB, New Delhi vide letter no. CFLS-2010/A-0194/4516 dated 06.08.2010.
Statement of Accused
4. After conclusion of prosecution evidence, statement of all the accused persons under Section 313 Cr.P.C were recorded wherein they denied all the incriminating evidence put to them as wrong and incorrect and pleaded their innocence. Accused persons did not examine any witness in their defence.
Arguments
5. I have heard the rival contentions raised at bar by Ld. PPs Ms. Bindu and Ms. Jyoti Solanki for the CBI as well as the Ld. Defence Counsel Sh. Hitender Kapur, carefully CC No. 102/2019 CBI Vs. Braham Parkash and ors 70/216 considered & examined the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case. I have also gone through the detailed written arguments filed by Ld. Defence Counsel and the supporting case laws by the respective parties.
Findings
6. The present prosecution was launched on the basis of complaint dated 22.12.2008 i.e. Ex. PW45/A, of Sh. Vivek Priyadarshi (PW45), the then Additional SP CBI ACB which resulted in registration of the present case FIR i.e. Ex. PW46/A1.
6.1 As per Ex. PW45/A a preliminary enquiry (in short PE) no. PE DAI 2008 A 0002 was registered at ACB CBI New Delhi on 19.05.2008 subsequent to recovery & seizure of voluminous incriminating documents, relating to various resettlement schemes of Delhi Development Authority (DDA in short), during searches conducted in case No. RC-DAI-2007-A- 0025 registered on 24.07.2007 at ACB CBI Delhi against Sh. Ashok Malhotra (since deceased), officials of DDA and others.
6.2 As per the PE, the investigation in RC-DAI-2007-A- 0025 & RC-DAI-2007-A-0034 revealed deep involvement of deceased Ashok Malhotra in fraudulent allotment of various resettlement scheme plots meant for poor inhabitant of various Slum & JJ Colonies, in conspiracy with DDA officials. It is the prosecution case that the inquiry disclosed that deceased Ashok Malhotra entered into a conspiracy with accused no. 1 & others CC No. 102/2019 CBI Vs. Braham Parkash and ors 71/216 and in pursuance of the same fraudulently got allotted atleast 25 plots in the Alaknanda Camp resettlement scheme at Madanpur Khadar, Delhi during the year 2002 on the strength of fake Ration cards, Delhi Administration Identity Cards etc. 6.3 It is further its case that fake ration cards and Delhi Administration cards were prepared in the name of 25 fictitious, non existing persons whose names were inserted by accused no. 1 in the survey lists of DDA and thereafter he issued Allotment cum Demand Letters in the name of said persons. It is its case that co-accused persons got prepared the demand drafts of Rs.5000/- for 12.5 sq. meter plots & Rs.7000/- each for 18 sq. meter plots and deposited the same with DDA along with other papers forged by them i.e. ration cards, Delhi administration cards etc. 6.4 It is its case that accused no. 1 accepted the said documents without verifying the credentials & knowing them to be fake and allotted plots in names of those persons at Madanpur Khadar as well as gave possession of the said plots to the co- accused persons. It is its case that co-accused persons further sold these plots to poor unsuspecting persons at market price.
6.5 This in nutshell is the prosecution case.
Survey Lists
7. The foremost step in Alaknanda Camp Resettlement Scheme, for relocation of the dwellers of the JJ cluster, was the CC No. 102/2019 CBI Vs. Braham Parkash and ors 72/216 preparation of the survey lists. The survey lists as per the prosecution case were to be prepared by the Field Investigators (in short FIs) under the supervision of the Assistant Director, Land Management South East Zone, DDA. According to the prosecution the FIs at the relevant time were Sh. Vijay Pal & Sh. Kushal Pal Malik and when the survey was started Sh. Paramjit Singh was the Assistant Director who was subsequently transferred and in his place accused no. 1 joined as Assistant Director (in short AD).
7.1 The purpose of the survey was to identify the dwellers of the JJ clusters who were to be shifted, relocated and during the survey, a survey register was prepared wherein the details of the jhuggi dwellers i.e. their names, parentage, jhuggi number, ration card number, number of family members etc. were entered.
7.2 FI Kushal Pal Malik (PW1) during his deposition explained the manner in which the survey was conducted as under:-
"The function of the FI is to conduct survey of JJ Cluster and to provide labour for demolition of unauthorized occupation over the DDA land...............
..............The FI used to conduct survey of the JJ Cluster on the order of higher officers......... FI used to check ration card, election card and Delhi Administration ID card issued by the government to identify the status of JJ dweller at the relevant time. The particulars of above documents also noted by FI on the survey register. FI used to put serial numbers on the jhuggis starting from serial no.1. Thereafter, survey of each premises is conducted and entries are made serial wise in the survey register in respect of each jhuggi in which name, parentage, jhuggi no. as given in the ration card, ration card no., number of family members as given in the ration card, Delhi Admn. ID Card and Votor I-card number, if any.
In case any jhuggi was found to be locked then in the relevant CC No. 102/2019 CBI Vs. Braham Parkash and ors 73/216 column, FI used to make entry as 'jhuggi found locked' against the serial number. After checking the ration card, FI used to put 'serial number of the jhuggi along with DDA' on the ration card. The above entire exercise during the survey used to be conducted under the supervision of concerned AD and Dy. Director also used to visit from time to time during the survey............
................After conducting the survey the particulars of the jhuggi and jhuggi dwellers used to be entered in the survey list prepared by the FI and thereafter, entry of the above particulars used to be made in the office. FI used to sign survey list and put up the report to the Assistant Director to send the same for further action to the higher officers.
In the year 2002, I along with Vijay Pal, FI have conducted survey of Alaknanad JJ Cluster Camp. I received the orders from my higher officers. The then Asstt. Director (Survey) Shri Paramjit Singh accompanied me and another FI Vijay Pal for JJ Cluster, Alaknanad and on reaching the site, he instructed both of us to put a serial number on the jhuggi and then start survey from the said serial number of jhuggi. We put the serial numbers on all the jhuggis and then started survey by visiting each jhuggi individually. We checked ration card and other documents shown by the jhuggi dweller and entered the particulars thereof in the survey register. We also entered details of jhuggi dwellers, i.e., name, parentage of jhuggi dweller, number of family members given in the ration card. We used to enter name of the jhuggi dweller and jhuggi number serial-wise in the survey register. Thereafter, survey register was signed by me and another FI and the same was put up, in the file of Alaknanada Camp, to the AD for onwards orders. I can identify the survey list prepared during the above survey, if shown to me..........
.............Once the survey of the allotted area is conducted, we are suppose to make entries in the Survey Register. In the present case also I alongwith Vijay Pal had prepared Survey Register. In the survey register we use to enter the name of the jhuggi dweller, the details of their ration card, voter card and ID card of Delhi Administration or any other document shown by jhuggi dweller provided for their identity or proof of residence. After making the said entry in the Survey Register we use to put the jhuggi number of said jhuggi dweller on his ration card. The Survey Register after its preparation was signed by me, Vijay Pal and Asstt. Director Braham Prakash......."
7.3 On similar lines is the deposition of PW37 FI Sh. Vijay Pal Malik who had conducted the survey along with PW1 and prepared the survey lists. The relevant portion of his CC No. 102/2019 CBI Vs. Braham Parkash and ors 74/216 testimony read as under:-
"During the survey of JJ cluster, the Field Investigator put serial numbers on the jhuggis starting from serial number 1. Thereafter, survey of each jhuggi is conducted and entries are made serial wise in the survey register in respect of each jhuggi in which name, father name, jhuggi number, ration card number, Delhi Administration Card number, number of family members as given in the ration cards and voter I card number are entered. If any jhuggi is found locked, then the space alongwith side its serial number is left blank. The last column of survey list is for remark, if any, for example locked etc. The entire exercise is conducted under the direct supervision of the concerned Assistant Director. The Field Investigator prepare the survey register, which is signed by the concerned Field Investigators and the concerned Assistant Director. After completion of the survey, the survey file is further put up to higher officers for taking a decision.
The survey of Alaknanda Camp was conducted by me and other Field Investigator Sh. Kushal Pal Malik under the order issued by Director, Land Management. The serial numbering of Alaknanda Camp jhuggis was done under the supervision of the then Assistant Director Sh. Paramjeet Singh. Thereafter, Sh. Paramjeet Singh was transferred from Land Management, South East Zone and in his place, Mr. Brahm Prakash joined as Assistant Director. The survey of Alaknanda Camp was conducted under the supervision of Brahm Prakash, Assistant Director and the allotments were made by Brahm Prakash. The survey was completed in few working days. During the survey, we had serially numbered the jhuggis of Alaknanda Camp and same number was entered in the ration card of the jhuggi occupant.
During the survey, a survey register was prepared by me and Sh. Kushal Pal Malik, the then Field Investigator. Thereafter, the survey register was signed by us, i.e. me and Sh. Kushal Pal Malik and the then Assistant Director Brahm Prakash and the same was put up in the file of Alaknanda Camp by the then Assistant Director Brahm Prakash. Then the file was put up before the higher officials for taking a decision regarding demolition and allotment of alternate plots."
7.4 As per the prosecution case four survey lists were prepared during this exercise/survey and the same are on record as Mark PW1/1 to PW1/4 (D8 to D11) as were duly identified by PW1 and PW37 during the trial. These survey lists are the most crucial, vital documents in the present matter. As regards the CC No. 102/2019 CBI Vs. Braham Parkash and ors 75/216 survey lists it was argued by Ld. Defence counsel that though the entire prosecution case rests upon Mark PW1/1 to Mark PW1/4, however, the prosecution miserably failed to prove them as per law and the same cannot be looked into. It was argued that neither the originals of the said documents have been produced by CBI nor any evidence has been led to prove the said documents/survey lists by leading secondary evidence.
7.5 No doubt, the originals of Mark PW1/1 to Mark PW1/4 were not produced on record, however, why the same could not be done stands duly explained. It stands duly proved that the originals of Mark PW1/1 to Mark PW1/4 i.e. the original survey lists were in the possession of accused no. 1 and he deliberately, intentionally misplaced/destroyed the same so as to avoid his culpability.
7.6 It has emerged on record that the originals of the survey list Mark PW1/1 to Mark PW1/4 were not available even at the time when the PE was registered by PW45 Sh. Vivek Priyadarshi on 19.05.2008 or at that time of giving complaint Ex. PW45/A (D-1) and registration of FIR Ex. PW46/A1 on 22.12.2008. Same emerges from the following cross-examination of PW45:-
"I had seen the survey list in relation to Alaknanda Camp, which is subject matter of the present case, but I do not remember whether I had seen original or the photocopy during the preliminary enquiry. I had received the survey list pertaining to this issue during the preliminary enquiry. Question: Have you received or recovered the original survey list of Alaknanda Camp which is subject matter of the present case during the course of preliminary enquiry? Answer: I had received the said survey list during the preliminary enquiry, but I do not remember whether it was original or a photocopy of the said survey list.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 76/216 I had received the said survey list from the concerned custodian in Delhi Development Authority. I do not remember whether I had asked for the original or a photocopy of the survey list. I cannot say after perusing the complaint Ex.PW45/A whether I had collected the original survey list during the preliminary enquiry.....................
..............I do not remember whether I had seen the original survey list pertaining to Alaknanda Camp during the course of preliminary enquiry or not."
7.7 Hence much before the present prosecution was launched the original survey lists had gone missing and they went missing while they were in the custody of accused no. 1. The relevant portion of deposition of PW1 Field Investigator Khushal Pal in this regard read as under:-
"The original copy of the survey list used to be kept by any of the senior officers of the Rank of Assistant Director and above."
7.8 PW37 Field Investigator Vijay Pal during his cross- examination by Ld. Defence counsel categorically stated that "I had seen the original survey list lastly when I handed over the same to my superior and retained the photocopy of the same for relocation work in the the department". He went to reiterate the same when he stated "The original survey register remained in possession of accused Brahm Prakash, being Asstt. Director". It was not even once suggested to PW37 that he was deposing falsely or that the original survey lists never remained in the possession of accused no. 1. Thus not only the original remained with accused no. 1, providing him opportunity to make insertions, interpolations in the same but also it was somewhere after the original survey list was handed over to the superior, who at that time was none other than accused no. 1, that the original survey list went missing. It was for accused no. 1 to explain the missing of the same. I have absolutely no hesitation in CC No. 102/2019 CBI Vs. Braham Parkash and ors 77/216 concluding that the survey lists went missing, were misplaced, destroyed by accused no. 1 so that the interpolations, insertions made in the copy of the survey lists do not come to fore.
7.9 It was accused no. 1 who either destroyed or deliberately, intentionally misplaced the original survey lists so as to give design to the conspiracy hatched by him with the co- accused persons.
7.10 Much before the preliminary enquiry of the present case was registered investigation was already on in RC No. 25(A)/2007 & 34(A)/2007 apart from other matters (around a dozen) which were registered almost one year back in the year 2007 and as discussed above, the same were registered against Ashok Malhotra (since deceased) and other accused persons including officials of DDA. The modus-operandi of those cases and the present one is exactly the same. Ashok Malhotra and the other accused persons, including DDA officials in collusion, conspiracy with each other were indulging in/managing fraudulent allotments of various resettlement scheme plots and then selling them in the open market. It was on account of registration of RC No. 25(A)/2007 & 34(A)/2007 as well as other cases and the investigation, searches carried out in those cases that accused no. 1 who was in possession of the original survey lists destroyed, misplaced the same so as to avoid his culpability, his misdeed coming to surface. Being employed with DDA accused no. 1 was well aware that the allotment/relocation schemes are under investigation and therefore before the search/investigation could lead to him he had already CC No. 102/2019 CBI Vs. Braham Parkash and ors 78/216 destroyed/done away with the original survey lists.
7.11 As per the prosecution after registration of FIR Ex. PW46/A1, the investigation was marked to PW46 Insp. Hitender Adhlakha. PW46 had seized the survey lists Mark PW1/1 to PW1/4 i.e. photocopy of spiral binding papers titled as Alaknanda 1, Alaknanda 2, Alaknanda 3 and Alaknanda 4 vide seizure memo Ex. PW46/A2, as was deposed by him. Even he had not seen the original survey lists and the reason being that accused no. 1 who was having the custody of the same had already destroyed, done away with the same. For this reason the originals could not be traced or brought on record. As regards his statement that he does not remember as to who was the custodian of the original survey lists, suffice would be to say that it stands established from the testimony of the FIs, as discussed above, that it was accused no. 1 who was the custodian of the same. The relevant portion of his cross-examination of PW46 in this regard read as under:-
"I have not seen the original survey list pertaining to Alaknanda Camp."
7.12 Even PW47 the then Insp. Girish Bhardwaj could not lay his hands on the original survey lists.
7.13 Though it was also argued by Ld. Defence counsel that the person from whom the survey lists were seized by PW46 Insp. Hitender Adlakha i.e. Kanhiya Lal was not examined by the prosecution and therefore the seizure could not be proved, however, I find no merits in his arguments. Once PW46 proved the seizure memo Ex. PW46/A-2 there was no additional CC No. 102/2019 CBI Vs. Braham Parkash and ors 79/216 requirement to examine Kanhiya Lal who had handed over the survey lists to PW46. The law is well settled that it is the quality and not the quantity/number of witnesses that matters. Section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a particular fact ( Sunil Kumar V. State Govt. of NCT of Delhi SC 2004 (1) Criminal CC 524, Krishna Mochi and others Vs. State of Bihar (2002) 6SCC 81).
7.14 In Ram Karan Vs. State of Rajasthan 1997 (2) FAC 131, it was held as under:
"In our system of administration of justice no particular number of witnesses is necessary to prove or disprove a fact. If the testimony of a single witness is found worth reliance, conviction of an accused may safely be based on such testimony. In our system we follow the maxim that evidence is to be weighed and not counted. It is the "quality" and not the "quantity" of the evidence which matters in our system. This cardinal principle of appreciation of evidence in a case has been given a statutory recognition in Section 134 of the Evidence Act of 1872."
7.15 Further reliance may be placed upon the law laid down in Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC 696), Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336, Appabhai v. State of Gujarat AIR 1988 SC 696 and State of U.P. v. Anil Singh AIR 1988 SC 1998.
7.16 The seizure memo Ex. PW46/A2 makes it crystal clear that the documents seized vide the same included the survey lists as is duly mentioned from Sl. No. 29 to 32. The survey lists are already on record as Mark PW1/1 to Mark PW1/4. So not only CC No. 102/2019 CBI Vs. Braham Parkash and ors 80/216 the seizure memo is on record but so are the seized documents. Most importantly if the defence indeed wanted to prove that PW46 was making a false claim to that effect or that no survey lists were seized vide Ex. PW46/A-2 nothing stopped the defence from examining Sh. Kanhiya Lal to rebut the prosecution case. It was for the defence to establish that the signatures on the seizure memo against "Handed over by" were not of Kanhiya Lal. Having not done so I find no reasons to doubt the seizure memo Ex. PW46/A-2 or the seizure proceedings.
7.17 Having discussed the same, it also stands proved on record that survey lists Mark PW1/1 to Mark PW1/4 are indeed the copies of the original survey lists. To being with upon being shown photocopy of survey lists PW1 identified the same, during his examination in chief, as Mark PW1/1 to PW1/4. The relevant portion of his deposition read as under:-
"At this stage, Ld. Sr. PP for CBI has shown to the witness D8 to D11, which are photocopies of survey list pertaining to Alaknanda Camp and on seeing the above four survey lists, the witness states that said lists were prepared in his handwriting and the handwriting of Vijay Pal. The above survey lists are Mark PW1/1 to PW1/4 respectively."
7.18 No doubt during his cross-examination by Ld. Defence Counsel he categorically stated as under:-
"The survey list used to be written by me in English. Vol. As the same used to be seen on the basis of the documents submitted by JJ Dwellers. I cannot identify the handwriting appearing at serial No. 1784 of Mark PW1/4 (D-11).
I cannot tell if the photocopy Mark PW1/4 (D-11) is same or different from its original copy. The original copy of the survey list used to be kept by any of the senior officers of the Rank of Assistant Director and above. I do not remember as to who had prepared the photocopy Mark PW1/4 (D-11).
Ques: Why the photocopy i.e. Mark PW1/4 (D-11) was prepared?
CC No. 102/2019 CBI Vs. Braham Parkash and ors 81/216 Ans: I do not know.
......................The original survey list was in the form of the register and not similar to Mark PW1/4 (D-11)"
,however, I have absolutely no doubt that Mark PW1/1 to PW1/4 are the copies of the survey lists as were prepared by the FIs i.e. PW1 and PW37 after the survey. When the said survey lists were shown to PW37 he had identified the said lists as having been prepared by him and PW1. PW37 went on to state that the copy of the survey lists were prepared in his office for the purpose of relocation. The relevant portion of his testimony read as under:-
"At this stage, Ld. Sr. PP for CBI has shown to the witness D8 to D11, which are photocopies of survey list pertaining to Alaknanda Camp and on seeing the above four survey lists, the witness states that said lists were prepared in his handwriting and the handwriting of Sh. Kushal Pal Malik. The above survey lists are already Mark PW1/1 to PW1/4 respectively."
7.19 Not even once a suggestion was given to PW37 that the said Mark PW1/1 to Mark PW1/4 are not the photocopies of survey lists as were prepared by them or that he was deposing falsely to that extent. Furthermore how the copies of the survey lists came into existence was duly explained by PW37 when he deposed that copies of the original survey register are/were prepared in his office when he stated as under:-
"I have been shown D-8 to D-11, which are copies of the original survey register that is done by me and Mr. Kushal Pal Malik in the concerned area. The survey report bears signatures of Kushal Pal Malik at point A, my signature at point B and signature of accused Braham Prakash at point C on the last page of the D-11. D-8 to D-11 are survey report in continuation. Copies of the original survey register are prepared in my office for the purpose of relocation of the jhuggi cluster and further proceedings. In Column no. 10 of the survey register entries are made in original."
CC No. 102/2019 CBI Vs. Braham Parkash and ors 82/216 7.20 This part of testimony of PW37 remained unrebutted, unchallenged and I find no reasons to disbelieve the same. Hence no doubt remains that Mark PW1/1 to Ex. PW1/4 are indeed the copies of the survey lists prepared by the said FIs. Furthermore the fact that entries were made in original in Mark PW1/1 to Mark PW1/4 in column no. 10, after the allotment, duly corroborates PW37's testimony and leaves no doubt that Mark PW1/1 to Mark PW1/4 are the copies of the original survey lists which were prepared and used for the purpose of relocation of the jhuggi cluster. Once the entries in original were made in the survey lists Mark PW1/1 to Mark PW1/4, after allotment, the said lists became original documents for the purpose of the entire resettlement/relocation scheme. It was these lists which were being used for the purpose of allotment and relocation of the JJ dwellers or else there was no occasion for the allotted jhuggi numbers to be mentioned in Mark PW1/1 to Mark PW1/4. It being duly admitted by PW1 and PW37 that the said lists are the ones prepared by them during the survey no further evidence/proof was required to prove the said lists. At this stage will be pertinent to highlight the relevant portion of cross- examination of PW47 in this regard which read as under:-
"The allotments of plots in question was done on the basis of the survey list, which has been supplied to the CBI and the same is partly original and partly photocopy.
Que: Can you specify out of D8, D9, D10 and D11, which of the survey list is original and which is the photocopy, on the basis of which the allotments of plots have been made? Ans: After seeing D8, D9, D10 and D11, I state that all these documents are partly original and partly photocopy. On a photocopied document, entries in handwriting have been made, on the basis of which allotments of plots have been made by the accused persons."
CC No. 102/2019 CBI Vs. Braham Parkash and ors 83/216 Interpolations, insertions in the survey lists
8. It is the prosecution case that accused no. 1 had made interpolations, subsequent entries in the above survey lists, prepared by FIs Kushal Pal Malik (PW1) & Vijay Pal (PW37), in the name of non existing persons and that the same was done pursuant to the conspiracy hatched by him and co-accused persons with the ultimate aim to sell the plots in the open market.
8.1 On the contrary, it was also argued by Ld. Defence counsel that no such interpolations were done by accused no. 1 and the prosecution miserably failed to prove the same. It was argued that there are/were number of entries in Mark PW1/1 to Mark PW1/4, similar to the questioned entries and when the same were shown to the prosecution witnesses especially PW1 and PW37 they failed to identify the same. It was argued that no investigation was carried out qua these other entries and the investigation was confined only to 25 questioned entries, which has remained unexplained and itself smells of foul play. It was also argued that though not explained by the prosecution, however, it appears and cannot be completely ruled out that these additional entries including the questioned entries were purportedly made after the re-survey and atleast they were not made by accused no. 1 as none of the witnesses attributed the questioned entries in Mark PW1/1 to Mark PW1/4 to accused no.
1. 8.2 As far as the insertions, interpolations in the survey lists are concerned, it has been discussed above that the survey CC No. 102/2019 CBI Vs. Braham Parkash and ors 84/216 lists used to be prepared by the FIs who in this case were PW1 and PW37. It was these FIs who were making entries in the survey lists, survey register. However when the questioned entries in the survey lists were shown to PW1, he categorically deposed that entries at Sl Nos. 24/1, 39/1, 74, 121/1, 164/1, 202/1, 1173/1, 1226/1, 1376/1, 1392/2, 1432/1, 1577/1, 1605/1, 1723/1, 1757/1, 1763/1, 1767/1, 1774/1, 1892/1, 1929/1, 1942/1, 1979/1, 1995/1, 2000/1 and 2031/1 in survey lists Mark PW1/1 to Mark PW1/4 are neither in his handwriting nor in the handwriting of FI Vijay Pal (PW37). The relevant portion of deposition of PW1 in this regard read as under:-
"In the survey list Mark PW1/1, entries at serial no. 24/1 at Q397 to Q399, serial no. 39/1 at Q399A and Q399A/1, serial no. 74 at Q400 and Q401, serial no. 121/1 at Q402 and Q403, serial no. 164/1 at Q403A and Q403A/1 and serial no. 202/1 at Q404 to Q406 are neither in my handwriting nor in the handwriting of another FI Vijay Pal.
In the survey list Mark PW1/2, entries at serial no. 1173/1 at Q414 and serial no. 1226/1 at Q415 are neither in my handwriting nor in the handwriting of another FI Vijay Pal. In the survey list Mark PW1/3, entries at serial no. 1376/1 at Q407, serial no. 1396/2 at Q408, serial no. 1432/1 at Q409, serial no. 1577/1 at Q410 to 412, serial no. 1605/1 at Q413, serial no. 1723/1 at Q416, serial no. 1757/1 at Q417, serial no. 1763/1 at Q418, serial no. 1767/1 at Q419, serial no. 1774/1 at Q420, serial no. 1892/1 at Q421, serial no. 1929/1 at Q422, serial no. 1942/1 at Q423, serial no. 1979/1 at Q424, serial no. 1995/1 at Q425, serial no. 2000/1 at Q426 and serial no. 2031/1 at Q427 are neither in my handwriting nor in the handwriting of another FI Vijay Pal.
8.3 So according to PW1 the questioned entries were not made by him or PW37. No doubt PW1, during his examination in chief, deposed that he cannot say as to in whose handwriting the said entries are, however, upon his cross examination by Ld. SPP for the CBI he admitted that during investigation he had stated to the CBI officials that the said entires were made by accused no. 1 CC No. 102/2019 CBI Vs. Braham Parkash and ors 85/216 Braham Prakash. The relevant portion of his cross-examination in this regard read as under:-
"It is correct that during course of investigation, I had stated to the CBI officials that the aforementioned entires were being made by accused Braham Prakash."
8.4 The above statement of PW1 was never challenged by the defence during the cross-examination. It was not even once suggested to PW1 that he was deposing falsely in that regard or that the entries were not made by accused no. 1 Brahm Prakash. Accordingly, I find no reasons to disbelieve the prosecution case based upon the said statement of PW1 and therefore it stands duly proved on record that these entries were made subsequently by accused no. 1. Merely because the said statement was made during the cross-examination that by itself does not devalue or discredit the same. Examination of a witness includes examination in chief, cross-examination as well as re- examination and it is the sum & substance of the deposition which has to be considered and not any isolated statement. The whole statement has to be considered for evaluating, appreciating the witness's testimony/deposition. The categoric statement during the examination in chief that the entries were not made by him and admission during the cross-examination that the same were made by accused no. 1, which as discussed above remained unchallenged/unrebutted, is enough evidence to connect accused no. 1 with the said entries, interpolations. Add to it the positive CFSL result Ex. PW40/F which puts to rest the controversy regarding the questioned entries. Things would have been entirely different had PW1, during his cross-examination, stated that he had not made any such statement to the CBI during the CC No. 102/2019 CBI Vs. Braham Parkash and ors 86/216 course of investigation.
8.5 During the course of arguments, Ld. Defence counsel laid much emphasis on the following statement of PW1:-
"Document Mark PW1/4 (D-11) was never shown to me prior to being shown in the Court. I was interrogated in connection with this case by the CBI officials. During my interrogation or investigation of this case, I was never shown document Mark PW1/4 by the CBI officials."
and argued that when PW1 was not even shown the survey lists during the investigation then how the said witness could have stated to the CBI that the interpolations were made by accused no. 1. It was argued that that by itself proves the falsity of the statement made by PW1. As far as this argument is concerned, suffice would be to say that, as discussed above, the statement by PW1 during his cross-examination by Ld. SPP for the CBI remained unrebutted, unchallenged and I find no reasons to disbelieve the same. Secondly, the above statement, as highlighted by Ld. Defence counsel, was made by PW1 only qua Mark PW1/4 and not Mark PW1/1 to PW1/3. In fact the entire cross-examination of PW1 remained confined only to Mark PW1/4 and did not touch the other survey lists. Thirdly & most importantly, once PW1 upon being shown the questioned entries categorically stated that they are not in his handwriting nor in PW37's and the FSL result Ex. PW40/F connects the said entries to accused no. 1, the same clinches the issue.
8.6 Apart from PW1, PW37 also categorically deposed that the above questioned entries in Mark PW1/1 to PW1/4 are not in his handwriting. No doubt he did not specifically state that CC No. 102/2019 CBI Vs. Braham Parkash and ors 87/216 the said entries are in the handwriting of accused no. 1 but firstly PW1 having categorically stated so i.e. the entries are in the handwriting of accused no. 1, secondly both PW1 and PW37 having denied made the said entries and thirdly & most importantly, the CFSL result Ex. PW40/F leaves no doubt that the entires are in the handwriting of accused no. 1. Fourthly, it is to be seen that qua the questioned entries in the survey lists, the corresponding entries in the allotment registers are also in the handwriting of accused no. 1, as has been discussed in detail in the later part of the judgment. Even the FSL result regarding the entries in the allotment registers is against accused no. 1 and in favour of the prosecution. This further proves that the questioned entries in the survey lists were made by, are indeed in the handwriting of accused no. 1. When the evidence is read in toto no doubt remains that the said entries were made by accused no. 1 pursuant to the conspiracy hatched by him along with the co- accused persons.
8.7 The questioned entries in the survey lists Q397 to 427 were sent to FSL for forensic examination, opinion and comparison with the specimen writings S1 to S18 of accused no. 1 vide Ex. PW40/H. The CFSL result Ex. PW40/F, as was proved by PW40 Sh. Jeet Singh, Senior Scientific Officer, CFSL, leaves no doubt that the questioned entries in the survey lists Mark PW1/1 to PW1/4 were indeed made by accused no. 1. The relevant portion of the report is reproduced hereunder:-
"III. The Hand Writings evidence points to the writer of the standard English writings/signatures and numerals marked as S-1 to S-18 attributed to Braham Prakash being the person responsible for writing the questioned English writings/signatures marked as Q-1, Q-2, Q-15, Q-16, Q-28, Q-
CC No. 102/2019 CBI Vs. Braham Parkash and ors 88/216 29, Q-41, Q-42, Q-54, Q-55, Q-68, Q-69, Q-82, Q-83, Q-95, Q- 96, Q-109, Q-110, Q-123, Q-124, Q-136, Q- 137, Q-149, Q-150, Q-163, Q-164, Q-177, Q-178, Q-193, Q-194, Q-206, Q-207, Q- 221, Q-222, Q-Q-236, Q-237, Q-250, Q-251, Q-262, Q-263, Q- 275, Q-276, Q-290, Q-291,Q-304, Q-305, Q-318, Q-319, Q- 332, Q-333, Q-346, Q-348, Q-350, Q-352, Q-354, Q- 356, Q- 358, Q-360, Q-362, Q-364, Q-366, Q-368, Q-370, Q-372, Q- 374, Q-376, Q-378, Q-380, Q-382, Q-384, Q-386, Q-388, Q- 390, Q-392, Q-394, Q-395, Q-397, Q-398, Q- 400, Q-401 to Q- 405, Q-407 to Q-427, Q-432, Q-433, Q-434, Q-441, Q-442, Q- 444, Q- 450, Q-451, Q-453, Q-465, Q-466, Q-468, Q-510, Q- 512, Q-513, Q-538, Q-540, Q-542, Q-597, Q-599, Q-601, Q- 635, Q-637, Q-639, Q-657, Q-658, Q-661, Q-678, Q-679, Q- 681, Q-698, Q-699, Q-701, Q-718, Q-719, Q-721, Q-738, Q- 739, Q-741, Q-765, Q-766, Q-768, Q-792, Q-793, Q-795, Q- 818, Q-819, Q-821, Q-847, Q-848, Q-850, Q-854A, Q- 855A, Q-857A, Q-873A, Q-874, Q-876, Q-892, Q-893, Q-895, Q-911, Q-912 and Q- 914 due to the following reasons-
The questioned writings/signatures/numerals is written freely showing smooth line quality and natural variation. Qualities of imitation are not present in them. The specimen English signatures are also written freely showing smooth line quality and natural variations Both the questioned and the specimen English writings/signatures/numerals agree with each other in the general writing characteristics such as movement, slant, spacing, alignment, relative size, proportion of letters. The skill and line quality of the questioned writings/ signatures/numerals is also found consistent with these qualities of the specimen signatures Both questioned and the specimen English writings/signatures/numerals also agree with each other in individual writing characteristics without any material divergence. Some of the points of similarity are detailed below:-
i) Similarity is observed in the excecution of capital letter 'A' with the nature and formation of the initial stroke, retracing at the bottom, angularity at the top and direction and finish of the terminating stroke, stroke originating from the foot of the second staff and connection with the first staff ie horizontal stroke and direction and finish of the terminating stroke as observed in the specimen English writing is similarly observed in the questioned English writing within the range and extent of their natural variations.
ii) Manner of execution of capital letter 'F' with the nature and formation of the staff, retracing at the base of the staff, formation of the first and second horizontal stroke and direction and finish of the terminating stroke as observed in the specimen English writing is similarly observed in the questioned English writing within the range and extent of their natural variations.
ⅲ) Similarity has been observed in the execution of capital letter 'E' with the nature and formation of the staff, formation of CC No. 102/2019 CBI Vs. Braham Parkash and ors 89/216 the first horizontal stroke, formation of the second horizontal stroke, angularity at the end of the second horizontal stroke, connection
(iv) with the 3d horizontal stroke in one operation ie. 2nd and 3rd horizontal stroke is executed in one operation as observed in the specimen English writing is similarly observed in the questioned English writing within the range and extent of their natural variations.
v) Manner of execution of capital letter 'P' with the nature and formation of the initial stroke, formation of the right body having a curve formation at the right side and direction and finish of the terminating stroke as observed in the specimen English writing is similarly observed in the questioned English writing within the range and extent of their natural variations.
vi) Manner of execution of capital letter 'M' with the nature and formation of the initial stroke, stroke originating from the foot of the staff having angularity or curve formation at the top, formation of the bridge stroke and direction and finish of the terminating stroke, connection with the following letter 'O', in the word 'Mohd", as observed in the specimen writings is similarly observed in the questioned English writings.
vii) Manner of execution of capital letter 'H' with the nature and formation of the initial stroke, stroke originating from the foot of the staff having angularity or curve formation at the bottom, formation of the diagonal stroke, connection with the toop of the second staff and direction and finish of the terminating stroke i e. full signature is executed in one operation and looks like Hindi letter 'Maa' as observed in the specimen writings is similarly observed in the questioned English writings.
viii) Manner of execution of capital letter 'T' with the nature and formation of the horizontal bar, stroke originating from the end of the horizontal bar, retracing and formation of the staff i.e. capital letter 'T' is executed in one operation and looking like English numeral '7' as observed in the specimen writings is similarly observed in the questioned English writings.
ix) Manner of execution of capital letter 'W' with the nature and formation of the staff, retracing at the foot of the staff, formation of the angularity or curve at the top, formation of the middle body and direction and finish of the terminating stroke as observed in the specimen writings is similarly observed in the questioned English writings.
xi) Manner of execution of capital letter 'R' with the nature and formation of the staff, stroke originating from the foot of the staff in left direction, formation of curve formation at the top, formation of the middle body and direction and finish of the terminating stroke as observed in the specimen writings is similarly observed in the questioned English writings.
xii) Manner of execution of capital letter 'L' with the nature and formation of the staff, curve formation at the bottom and direction and finish of the terminating stroke as observed in the specimen writings is similarly observed in the questioned CC No. 102/2019 CBI Vs. Braham Parkash and ors 90/216 English writings.
xiii) Similar manner of execution of capital letters such as 'C', 'K', 'H', 'S', 'J', 'G', 'B', etc. between the two sets of writings.
xiv) Manner of execution of small letter such as 'a, with the nature and formation of the initial stroke formation of the open body oval, formation of the middle body and direction and finish of the terminating stroke and connection with the following letter 'n' as observed in the specimen writings is similarly observed in the questioned English writings.
xv) Manner of execution of small letter 'r' with the nature and formation of the initial stroke, formation of the angularity or loop formation at the base and direction and finish of the terminating stroke i.e. small letter 'r' is executed in one operation as observed in the specimen English writing is similarly observed in the questioned English writing. xvi) Manner of execution of small letter 'h' in the word 'Prakash" with the nature and formation of the initial stroke, formation of the staff, stroke originating from the foot of the staff, formation of the buckle and connection with the the following letter small 'a' as observed in the specimen English writing is similarly observed in the questioned English writing. xvii) Similarity has been observed in the execution of small letter 'i', with the nature and formation of the I Dotting and connection with the following letter 'n' as observed in the word 'Singh", in the specimen English writing is similarly observed in the questioned English writing.
xviii) Similarity has been observed in the execution of small letter 'I' with the nature and formation of the initial stroke, formation of the middle body and direction and finish of the terminating stroke as observed in the specimen English writing in the word 'Jagdish' is similarly observed in the same word in the questioned English writing xix) Manner of execution of small letter 's' with the nature and formation of the initial stroke, formation of the middle body and direction and finish of the terminating stroke as observed in the word 'Jagdish' in the specimen English writing is similarly observed in the questioned English writing.
xx) Manner of execution of small letter 'w' with the nature and formation of the initial stroke, formation of the middle body, angularity at the base and direction and finish of the terminating stroke as observed in the specimen English writing is similarly observed in the questioned English writing. xxi) Similar manner of execution of small letters such as 'p', 'k', 'h', 'w, vre 'n', 'm', 'j' etc. between the two sets of writings. xxii) Similar manner of execution of words and combinations such as 'PKT-D', Ph- II', 'Om Prakash', 'Amrik Singh Sudhi', 'Smt. Hira Devi Bal, Mohd Hadish, "Chandrapal', 'Smt. Sunita Devi, Chheti Devi', Madan Lal', 'Jagdish, "Ram Dayal, "Dharampal, 'Bahadur, 'Ganeshi Devi', 'Shanti Devi', Badesh Ram', Prem Ram, 'Manoj Kumar', 'Pippi Devi', 'Sukh Ram', 'Jeet Pal', 'Jugal Kishor', 'Sita Ram', Alaknanda Camp' etc between CC No. 102/2019 CBI Vs. Braham Parkash and ors 91/216 the two sets of writings.
xxii) Similar manner of execution of numerals such as '2', '9', '7', '3', '4', '6', '8', between the two sets of writings in the detailed manner of execution within the range and extent of their natural variations.
xxiv) Manner of execution of Hindi signatures 'Braham Prakash' such as capital letter 'B' with the nature and formation of the staff, formation of the staff, the stroke originating from the top of the staff, formation of right body, formation of the curve intersecting the staff as a loop or angularity, formation of the middle body and direction and finish of the terminating stroke forming elongated loop in the horizontal direction and directional finish of the terminating stroke as observed in the specimen English writing is similarly observed in the questioned English writing within the range and extent of their natural variations xxv) Similarity has been observed in the execution of small letter 'r' with the nature and formation of the initial stroke, formation of the angularity at the base and direction of finish of the terminating stroke and connection with the preceeding letter capital 'B' is similarly observed in the two sets of signatures. xxvi) Manner of execution of small letter 'a' in the word 'Braham' with the nature and formation of the initial stroke, formation of oval, formation of the middle body and direction of finish of the terminating stroke is similarly observed in the two sets of signatures.
xxvii) Similarity has been observed in the execution of the rest of the signatures, formation of angularity and directional finish of the terminating stroke between the two sets of signatures. xxviii) Similarity has been observed in the execution of I dotting below the signatures between the two sets of signatures. xxix) Similar manner of execution of the complete signature 'Braham Prakash' between the two sets of signatures. Xxx) Similar manner of execution of combination of numerals such as 1907', '02', 1605', '1723', '1753', '1918', '1914', '1923', '1979', '1226', '245', '438', '208', '1920', '1922', '1905', '1908', between the sets of signatures."
8.8 Though Ld. Defence Counsel while relying upon Magan Bihari Lal Vs. State of Punjab 1977 AIR 1091 vehemently argued that the handwriting report by an expert is merely an opinion and not a substantive piece of evidence and that same alone is insufficient to connect accused no. 1 with the entries in Mark PW1/1 to Mark PW1/4, however, I find no merits in his arguments. As regards the judgment relied upon by Ld. CC No. 102/2019 CBI Vs. Braham Parkash and ors 92/216 Defence counsel is concerned, same came up for consideration in Murari Lal Vs. State of Madhya Pradesh 1980 AIR 531 and it was observed as under:-
"The above extracted passage, undoubtedly, contains some sweeping general observations. But we do not think that the observations were meant to be observations of general application or as laying down any legal principle. It was plainly intended to be a rule of caution and not a rule of law as is clear from the statement `it has almost become a rule of law'. "Almost", we presume, means "not quite". It was said by the Court there was a "profusion of presidential authority" which insisted upon corroboration and reference was made to Ram Chandra v. State of U.P., Ishwari Prasad v. Mohammed Isa, Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of M.P. (supra). We have already discussed these cases and observed that none of them supports the proposition that corroboration must invariably be sought before opinion evidence can be accepted. There appears to be some mistake in the last sentence of the above extracted passage because we are unable to find in Fakhruddin v. State of M. P. (supra) any statement such as the one attributed. In fact, in that case, the learned Judges acted upon the sole testimony of the expert after satisfying themselves about the correctness of the opinion by comparing the writings themselves. We do think that the observations in Magan Bihari Lal v. State of Punjab (supra) must be understood as referring to the facts of the particular case.
We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystalized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted."
8.9 The Hon'ble Apex Court further observed as under:-
CC No. 102/2019 CBI Vs. Braham Parkash and ors 93/216 "..........We begin with observation that the expert is no accomplice. There is no justification for condemning his opinion-evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses-the quality of credibility or incredibility being one which an expert shares with all other witnesses-, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty `is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'. (vide Lord President Cooper in Dacie v. Edinbeagh Magistrate : 1953 S. C. 34 quoted by Professor Cross in his Evidence)...........
Expert testimony is made relevant by s. 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person `specially skilled' `in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like illustration (b) to s. 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (s. 3) tells us that `a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial standard of proof not CC No. 102/2019 CBI Vs. Braham Parkash and ors 94/216 warranted by the provisions of the Act. Further, under s. 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that s. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it. Apart from principle, let us examine if precedents justify invariable insistence on corroboration. We have referred to Phipson on Evidence, Cross on Evidence, Roscoe on Criminal Evidence, Archibald on Criminal Pleadings, Evidence and Practice and Halsbury's Laws of England but we were unable to find a single sentence hinting at such a rule. We may now refer to some of the decisions of this Court. In Ram Chander v. U.P. State,(1) Jagannatha Das, J. observed : "It may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction" (emphasis ours) "May" and "normally" make our point about the absence of an inflexible rule. In Ishwari Prasad Misra v. Mohammed Isa,(2) Gajendragadkar, J. observed : "Evidence given by experts can never conclusive, because after all it is opinion evidence", a statement which carries us nowhere on the question now under consideration. Nor, can the statement be disputed because it is not so provided by the Evidence Act and, on the contrary, s. 46 expressly makes opinion evidence challengeable by facts, otherwise irrelevant. And as Lord President Cooper observed in Davie v. Edinburgh Magistrate : "The parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert".
In Shashi Kumar v. Subodh Kumar,(3) Wanchoo, J., after noticing various features of the opinion of the expert said :
"We do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and also the circumstances which go to show that this will must have been signed in 1943 as it purports to be. Besides it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by CC No. 102/2019 CBI Vs. Braham Parkash and ors 95/216 clear direct evidence or by circumstantial evidence. In the present case the probabilities are against the expert's opinion and the direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it".
So, there was acceptable direct testimony which was destructive of the expert's opinion; there are other features also which made the expert's opinion unreliable. The observation regarding corroboration must be read in that context and it is worthy of note that even so the expression used was `it is usual' and not "it is necessary'.
In Fakhruddin v. State of Madhya Pradesh,(4) Hidayatullah, J. said :
"Both under s. 45 and s. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert in the one case and to comparison depends on an analysis of the characteristics in appraise the value of the opinion in the other case. This the admitted or proved writing and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness."
These observations lend no support to any requirement as to corroboration of expert testimony. On the other hand, the facts show that the Court ultimately did act upon the uncorroborated testimony of the expert though these Judges took the precaution of comparing the writings themselves........
8.10 So the law is well settled that there is no requirement of independent corroboration before the opinion evidence of a handwriting expert can be acted upon. Nonetheless in the case at hand, the FSL report Ex. PW40/F and the testimony of PW1 & PW37 corroborate each other and leave no doubt that the CC No. 102/2019 CBI Vs. Braham Parkash and ors 96/216 questioned entries were not made by PW1 and PW37 but they were made by accused no. 1. As already discussed above both the FIs categorically stated that the questioned entries are not in their handwriting and PW1 went on to state that the entries are in the handwriting of accused no. 1 which statement remained unchallenged, uncontroverted during his cross-examination. Ex. PW40/F which connects the said entries to accused no. 1 thus corroborates their testimony.
8.11 It will be pertinent to highlight that during the entire cross-examination of PW40 not even a single suggestion was given to him that his report qua the questioned entries in the survey lists and the specimen writing of accused no. 1 is incorrect or false. As per the report there is enough similarity in the questioned entries and the specimen writing and both are attributed to accused no. 1. Though a generalized suggestion was given that the specimen writings S1 to S85 were all guided writings and not writings in a normal course by an individual, however, the same was specifically denied by PW40. When being specifically asked about specimen handwritings S55 (of accused R.S. Sandhu) PW40 categorically stated that the same are normal handwritings, not guided and he had also stated that he can identify from a document whether the same is guided or written in a normal course, when compared with the specimen and admitted handwriting. Though it was also suggested to PW40 that due to passage of time of 6-7 years between questioned writing and specimen handwritings a definite opinion cannot be given, however, PW40 denied the same and stated as under:-
"I can identify from a document whether the same is guided or written in a normal course when compared with specimen and CC No. 102/2019 CBI Vs. Braham Parkash and ors 97/216 admitted handwriting. The handwritings at S55 are normal handwritings and not guided handwritings........... ..........It is wrong to suggest that the specimen writings from S1 to S85 are all guided writings and are not the writings in a normal course of an individual.
.......It is wrong to suggest that due to time gap of 6-7 years between the questioned writings and specimen handwritings a definite opinion cannot be given. Vol. The individual identifying handwriting characteristics remains the same throughout the life."
8.12 At this stage, it will be worthwhile to highlight that when CFSL result was put to accused no. 1 during his examination u/s 313 Cr.P.C. he merely stated "It is a matter of record". The relevant portion of the examination of accused no. 1 u/s 313 Cr.P.C. is reproduced hereunder in this regard:-
"Ques 40: It is in evidence against you and your co-accused as per deposition of PW-40 Sh. Jeet Singh, Sr. Scientific Officer (Document), CFSL, certain documents were forwarded by SP, CBI, ACB, New Delhi vide letter dated 03.02.2014 No. 1446/RC-55(A)/2008/CBI/ACB/New Delhi and letter no. 3846/RC-55(A)/2008 dated 24/25.3.2015, to Director, CFSL for forensic examination. What do you have to say?
Ans: It is matter of record.
Ques 40.01: It is in evidence against you and your co-accused as per deposition of PW-40 that the questioned documents Q958 to Q1121, Q1122A, Q1122B, Q1123, to Q1158, Q1139A and Q1151A and the specimen documents marked A1 to A5 were forwarded to Director, CFSL by SP, CBI, ACB, Lodhi Road, New Delhi for examination and upon said documents, he (PW-
40) had given his handwriting examination report No. CFSL-
2015/D-406 dated 20.4.2015 Ex. PW40/C which was sent to CBI by Dr. Rajender Singh, Director, CFSL vide forwarding letter dated 06.5.2015 Ex. PW40/D. What do you have to say? Ans: It is matter of record.
Ques 40.02: It is in evidence against you and your co-accused as per deposition of PW-40 Sh. Jeet Singh that vide his report No. CFSL-2014/D-180 dated 28.11.2014 Ex. PW40/A, he had given his expert opinion and the same was forwarded to SP, CBI, ACB through Dr. Rajender Singh, Director, CFSL, vide letter dated 02.12.2014 Ex. PW40/B. What do you have to say? Ans: It is matter of record.
Ques 40.03: It is in evidence against you and your co-accused as per deposition of PW-40 that vide forwarding letter dated 03.02.2014 Ex. PW40/E (colly), certain documents annexed with said letter as Annexures A,B,C and D were received by CC No. 102/2019 CBI Vs. Braham Parkash and ors 98/216 Director CFSL from D.K. Barik, SP, CBI for expert opinion. What do you have to say?
Ans: It is matter of record.
Ques 40.04: It is in evidence against you and your co-accused as per deposition of PW-40 that vide forwarding letter DLI RC 55 (A)/08 DLI 3914 dated 15.3.2010, the specimen documents marked S1 to S85 were also forwarded to Director, CFSL by SP, CBI, ACB, Lodhi Road, New Delhi for examination. What do you have to say?
Ans: It is matter of record.
Ques 40.05: It is in evidence against you and your co-accused as per deposition of PW-40 that the documents of his case were examined carefully with the help of video spectral comparator- 5000, twin video comparator, stereo zoom microscope, magnifying glasses and after applying the principles of handwriting examination, PW-40 had expressed his opinion and given the detailed scientific reasoning of his opinion in para 7(i)
(ii)(iii) and (iv) of his examination report dated 28.02.2011. What do you have to say?
Ans: It is matter of record.
Ques 40.06: It is in evidence against you and your co-accused as per deposition of PW-40 that handwriting examination report No. CFSL-2010/A-194 dated 28.02.2011 Ex. PW40/F was given by him and sent to Superintendent of Police, CBI, ACB, New Delhi vide forwarding letter dated 07.3.2011 Ex. PW40/G. What do you have to say?
Ans: It is matter of record.
Ques 40.07: It is in evidence against you and your co-accused as per deposition of PW-40 that vide forwarding letter dated 15.3.2010 Ex. PW40/H (colly), certain documents annexed with said letter as Annexure A, B and C were sent to Director CFSL, New, Delhi by CBI for examination of documents and opinion and all the said questioned documents Q1 to Q957 and specimen documents S1 to S85 were examined by PW-40 in RC No. 55(A)/08/DLI and in that regard he gave his report Ex. PW40/F. What do you have to say?
Ans: It is matter of record.
8.13 The purpose of recording statement u/s 313 Cr.P.C. is to give the accused an opportunity to explain the incriminating material as appearing against him. Merely stating "It is a matter of record" is no explanation and rather it is an admission that whatever is there, the same is on record. Accused no.1 did not even once state that the FSL report is false or incorrect and as discussed above no such suggestion was given to PW40 during CC No. 102/2019 CBI Vs. Braham Parkash and ors 99/216 his cross-examination. Similarly, when the relevant deposition of PW1 qua the questioned entries was put to accused no. 1 he simpliciter stated that PW1 has made various false averments in his deposition. He did not bother to explain why PW1 would falsely depose against him. The relevant portion of his examination u/s 313 Cr.P.C. in this regard is reproduced hereunder:-
Ques 1.31: It is in evidence against you and your co-accused as per deposition of PW-1 that he during investigation had stated to CBI that aforementioned entires (i.e. the entires mentioned in the last three questions) in the survey lists were made by Braham Prakash i.e. by you. What do you have to say? Ans: The witness has made various false averments in his deposition.
8.14 In Nar Singh vs State Of Haryana AIR 2015 SUPREME COURT 310 it has been held as under:-
11. The object of Section 313 (1)(b) Cr.P.C. is to bring the substance of accusation to the accused to enable the accused to explain each and every circumstance appearing in the evidence against him. The provisions of this section are mandatory and cast a duty on the court to afford an opportunity to the accused to explain each and every circumstance and incriminating evidence against him. The examination of accused under Section 313 (1)(b) Cr.P.C. is not a mere formality. Section 313 Cr.P.C. prescribes a procedural safeguard for an accused, giving him an opportunity to explain the facts and circumstances appearing against him in the evidence and this opportunity is valuable from the standpoint of the accused. The real importance of Section 313 Cr.P.C. lies in that, it imposes a duty on the Court to question the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby, an opportunity is given to him to explain any such point.
12. Elaborating upon the importance of a statement under Section 313 Cr.P.C., in Paramjeet Singh alias Pamma v. State of Uttarakhand, (2010) 10 SCC 439 (para 22), this Court has held as under:
5 "Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so.
Therefore, the court is under a legal obligation to put the CC No. 102/2019 CBI Vs. Braham Parkash and ors 100/216 incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration." (vide Sharad Birdichand Sarda v. State of Maharashtra(1984) 4 SCC 116 and State of Maharashtra v. Sukhdev Singh (1992) 3 SCC 700.
13. In Basava R. Patil & Ors. v. State of Karnataka & Ors., (2000) 8 SCC 740, this Court considered the scope of Section 313 Cr.P.C. and in paras (18) to (20) held as under:-
"18. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". In Jai Dev v. State of Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with. He observed thus:
"The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him......."
8.15 The following observations made in Premchand Vs. The State of Maharashtra 2023 LiveLaw (SC) 168 are also relevant in this regard:-
"16. Bearing the above well-settled principles in mind, every criminal court proceeding under clause (b) of sub-section (1) of section 313 has to shoulder the onerous responsibility of scanning the evidence after the prosecution closes its case, to trace the incriminating circumstances in the evidence against the accused and to prepare relevant questions to extend opportunity to the accused to explain any such circumstance in the evidence that could be used against him. Prior to the amendment of section 313 in 2009, the courts alone had to perform this task. Instances of interference with convictions by courts of appeal on the ground of failure of the trial court to frame relevant questions and to put the same to the accused were not rare. For toning up the criminal justice system and ensuring a fair and speedy trial, with emphasis on cutting down delays, the Parliament amended section 313 in 2009 and inserted sub-section (5), thereby enabling the court to take the assistance of the Public Prosecutor and Defence Counsel in CC No. 102/2019 CBI Vs. Braham Parkash and ors 101/216 preparing such questions [the first part of sub-section (5)]. Ideally, with such assistance (which has to be real and not sham to make the effort effective and meaningful), one would tend to believe that the courts probably are now better equipped to diligently prepare the relevant questions, lest there be any infirmity. However, judicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the accused elects to come forward with evasive denials or answers questions with stereotypes like 'false', 'I don't know', 'incorrect', etc. Many a time, this does more harm than good to the cause of the accused. For instance, if facts within the special knowledge of the accused are not satisfactorily explained, that could be a factor against the accused. Though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances........"
8.16 Hence accused no. 1 did not offer any reasonable explanation to the incriminating material i.e. FSL result Ex. PW40/F existing against him and simpliciter stated "It is matter of record." thereby impliedly accepting the report on record.
8.17 Coming back to the survey lists, the first questioned entry in the survey list D-8/Mark PW1/1 Q397 is in the name of Shanti Devi bearing Sl No. 24/1. As per the survey list Mark PW1/1 she was shown to be occupant of jhuggi no. B-77, which entry as discussed above is an interpolation in the survey list, which interpolation, insertion was subsequently made by accused no. 1, after the lists had been prepared by the FIs. Smt. Shanti Devi is a non existing, fictitious person. After preparation of the survey lists, demand letters were issued to those whose names appeared in the survey lists which included the entities in whose names the questioned entries were made. Along with the demand drafts and other documents these fictitious persons had purportedly furnished copy of I card allegedly issued by Delhi CC No. 102/2019 CBI Vs. Braham Parkash and ors 102/216 Administration for example I card bearing no. 145177. The details of the said I card were mentioned against the questioned entry in the survey list. The original of the said I card was seized from Smt. Narayani Devi (PW26) i.e. purchaser/occupant of the allotted plot, from Smt. Shanti Devi, vide seizure memo Ex. PW26/B. It has been discussed in the later part of this judgment that none of the allottees/questioned entries were found in occupation/possession of the allotted/alternate plots. The said I card is a forged and fabricated document as stands proved from the testimony of PW3 and PW4 i.e. the officials of Delhi Energy Development Agency (DEDA), which agency was responsible for preparation of I cards of JJ dwellers in Delhi. In fact all the I cards as were furnished along with the demand draft etc., after the issuance of demand letter qua the questioned entries were fake, forged and fabricated. It will be pertinent to highlight that, as discussed above, details of the I cards and the ration cards as provided by the JJ dweller, at the time of survey, were noted by the FIs in the survey lists. As far as the questioned entries are concerned i.e. the interpolations/subsequent entries made by accused no. 1, against those entries the details of the fake I cards and ration cards have been mentioned by him.
8.18 According to PW3 Sh. Sudhanshu Mishra:
"........the I-cards which were issued by DEDA were on pure white sheets of paper and not on pale yellow paper. The witness further states that all the aforesaid I-cards (Mark PW3/1 to PW3/17) mentioned above have been shown him today are on pale yellow paper...........".
8.19 No doubt PW3 had also stated that ".......he cannot comment as to whether the I-cards are genuine or not and he CC No. 102/2019 CBI Vs. Braham Parkash and ors 103/216 also cannot identify whether the photographs affixed on the aforesaid I-cards are of Polaroid camera or of normal camera", nonetheless during his cross-examination by Ld. PP for CBI he admitted as under:-
"It is correct that during interrogation I had told CBI that the I-cards bearing no.145133, 145177, 145335 and 145174 in files D12 relating to plot no.419 and 420, file D16 relating to plot no. 443 and file D14 relating to plot no. 416 were not from among the cards which were issued by DEDA then as these cards are on pale yellow card sheets whereas the cards issued by DEDA were on pure white sheets."
8.20 Furthermore during his cross-examination by Ld. Defence counsel he went on to state as under:-
"It is wrong to suggest that the cards in the files shown to me today were white in colour when issued and have turned pale yellow after lapse of time. Vol. The paper used to issue the I- cards by DEDA was such that it did not turn pale yellow even after lapse of time (The witness has also shown his own I-card which was issued during his tenure at DEDA which is still white although lamination has worn of a little. The same is seen and returned.)"
8.21 This goes a long way to prove that the I cards in question pertaining to the entities whose questioned entries are there in the survey lists Mark PW1/1 to PW1/4 were forged & fabricated and never issued by Delhi Administration. Add to it the testimony of PW4 Sh. Sangam Lal Shukla who after being shown the I cards in question corroborated the testimony of PW3 and stated as under:-
"..........whereupon the witness states that the I-cards which were issued by DEDA were on pure white sheets of paper and not on pale yellow paper. The witness further states that all the aforesaid I-cards mentioned above which have been shown him today are on pale yellow paper...............The witness further states that during his interrogation by CBI in the present case, he had also told the CBI that the photographs appearing on four I-cards Mark PW3/1 to PW3/4 bearing no. 145133 in file D16, 145177 in D14, 145335 and 145174 in file D12 CC No. 102/2019 CBI Vs. Braham Parkash and ors 104/216 respectively were taken by normal camera and not from Polaroid camera."
8.22 PW3 during his examination in chief had also stated as under:-
"The I-cards were prepared on the spot itself while conducting the survey with the help of Polaroid cameras which delivered instant photographs and normal cameras were not used as those required the photographs to be developed in the lab which was not feasible."
8.23 On similar lines is the deposition of PW4. In addition to the testimony of PW3 and PW4, during the investigation, expert opinion was sought from CFSL as to whether the questioned photographs on the I cards, as above, were taken from Polaroid camera or normal photographs were developed from negatives and CFSL result Ex. PW42/B regarding the photographs on the above I cards leaves no doubt that the photographs were prepared from the negatives i.e. were not taken from Polaroid camera. The relevant portion of the CFSL result Ex, PW42/B read as under:-
"On the basis of visual & physical examination of photographs marked as Q428, Q437, Q446, Q469, Q653, Q, 674, Q694, Q714, Q734, Q771, Q798, Q824, Q853, Q860A, Q879, Q897 and Q917 it appears that these photographs may have been prepared from the negatives."
8.24 No doubt PW42 Sh. Rakesh Bisht, Principal Scientific Officer, CFSL who had prepared the report Ex. PW42/B, during his cross-examination had stated as "There is no scientific instrument available in the lab for examination of photographs for the purpose of verifying the source of the questioned photographs. Vol. Only magnifying glass is used for the said purpose", however, it has emerged from his testimony that he CC No. 102/2019 CBI Vs. Braham Parkash and ors 105/216 had visually and physically examined the photograph. For this examination he had removed the lamination from the photographs. Though the photograph was not removed from the I card nonetheless the lamination was removed from the corner for the purpose of examination of the photograph. The relevant portion of his deposition read as under:-
"For examination of the questioned photographs in the present case, the lamination was removed from the photographs.........After going through Mark PW3/16 (part of Ex. PW13/B-colly), it appears to me that I had removed only the lamination on the corner of the photograph Q897......... Vol. I have only done the visual and physical examination of the above said documents.
..............The corner of the lamination on Mark PW3/1 (part of Ex. PW28/B-colly), Mark PW3/17 (part of Ex. PW10/B-colly) and Mark PW3/4 (part of Ex. PW27/A) was removed by me for the purpose of examination of photograph."
8.25 Though PW42 admitted that he did not remove lamination from the photographs of all the IDs, however, he did state that he had examined all the ID cards/photographs. His testimony has to be read in conjugation with that of PW3 and PW4 who had categorically deposed that the I cards in question are on pale yellow paper whereas the I cards issued by DEDA were on pure white sheets. For reference and comparison PW3, as discussed above, had also shown his I card during the cross- examination. Last but not the least the defence did not lead any evidence whatsoever to prove that the I cards in question were genuine ones and issued by Delhi Administration/concerned department.
8.26 Same is the situation regarding the I-cards furnished by the entities/persons whose questioned entries appear in Mark PW1/1 to PW1/4 i.e. entry no. 121/1 of Ram Lal, entry no. 202/1 CC No. 102/2019 CBI Vs. Braham Parkash and ors 106/216 of Ganeshi Devi (in D-8) entry no. 1226/1 of Sunita Devi (in D-
9), entry no.1376/1 of Ramesh Chand, entry no.1432/1 of Devender, entry no.1577/1 of Jagdish, entry no.1396/2 of Pippi Devi (in D-10), entry no.1763/1 of Satyawan, entry no.1767/1 of Badul Ram, entry no.1174/1 of Jugal Kishore, entry no.1929/1 of Bahadur, entry no.1979/1 of Chheti Devi, entry no.2000/1 of Jaipal, entry no.2031/1 of Sukhram, entry no.1942/1 of Vinod Kumar (in D-11).
8.27 As regards the other questioned entries, details of the ration card numbers as proof of identity of those persons/entities who are otherwise non existent have been mentioned in the survey lists. These ration cards, as were submitted along with the demand drafts etc, after the issuance of demand letter, were found to be fake during the investigation. To establish the same prosecution examined PW5 Sh. Gyan Singh who was posted as FSO in the department of Food & Civil Supply, Government of NCT of Delhi. Vide Ex. PW5/A (D-47) list of seized ration cards as seized vide Ex. PW12/A (in the name of Heera Devi), Ex. PW14/A (in the name of Jagdish), Ex. PW15/A (in the name of Satyawan and Badul Ram), Ex. PW18/A (in the name of Barpai), Ex. PW21/A ( in the name of Om Parkash), Ex. PW22/C (in the name of Chander Pal), Ex. PW22/E (in the name of Mohd. Hadish) were sent to the FSO to verify the same. These ration cards were furnished by the above purported individuals whose entries are there in the survey lists Mark PW1/1 to Mark PW1/4 at Sl. No. 1757/1 (D-11), 1577/1 (D-10), 1763/1 (D-11), 1767/1 (D-11), 1995/1 (D-11), 1605/1 (D-10), 74 (D-8) and 164/1 (D-8). The FSO furnished his report to the IO vide Ex. PW5/B (D-48) CC No. 102/2019 CBI Vs. Braham Parkash and ors 107/216 dated 13.10.2009 to the effect that there was never any Fair Price Shop no. 4116 in Circle no. 7 from which the said ration cards were shown to have been issued. Though ration card bearing no. 037535 was issued by Fair Price Shop no. 3416, however, the same was issued in the name of Ravi Kumar Verma and not Razia Begum who was shown to be the occupant of jhuggi no. B- 46, Alaknanda Camp i.e. the questioned entry no. 39/1 in Mark PW1/1 to Mark PW1/4. The relevant portion of the deposition of PW5 in this regard read as under:-
"At this stage, Ld. PP for CBI has also shown to the witness D48, which is a letter dated 13.10.09, whereupon the witness states that in reply to the aforesaid letter from CBI, he had sent this letter containing the requisite information under his signatures at point A wherein it was informed that as regards the ration cards shown to have issued by Fair Price shop no.4116 in the Annexure-I of their letter, there was never any Fair Price shop no. 4116 in circle no. 07 and so there was no question of issuance of any ration card as mentioned in Annexure-I mentioned above. CBI was further informed in this letter that only one ration card bearing no. 037535 was shown in their official record/register which was in the name of Ravi Kumar Verma R/o 880/8 Govind Puri, and was dated 11.10.99 and not in the name of Razia Begum shown as R/o Jhuggi No. B46, Alaknanda Camp as mentioned at serial no. 15 in Anneuxre-I of Ex.PW5/A (D47). CBI was further informed vide this letter that no other cards as mentioned in Annexure-I were issued by his office. The said letter is Ex.PW5/B (D48)."
8.28 Ld. Defence counsel vehemently argued that once PW5 was admittedly not sent the copy of ration cards nor he had supplied the copy of the official record/register to CBI and he had not even personally checked the record/register of the Fair Price Shop, no reliance can be placed upon the testimony of PW5 or his report Ex. PW5/B. However, I find no merits in his arguments. No doubt PW5 did not bring the record/register to the court, at the time of his deposition, however, why he did not produce the same was for the reason that he had been transferred CC No. 102/2019 CBI Vs. Braham Parkash and ors 108/216 to a different department, as is evident from his examination in chief. If indeed the defence wanted to prove that report Ex. PW5/B was false, incorrect nothing stopped the defence from summoning the original record/register from the concerned department. Having not done so, it is not now open to the defence to argue that the witness did not produce the original record/register at the time of his deposition. As regards the arguments that PW5 had not supplied the copy of the same to the CBI, in my considered opinion the same was not required. He was asked to verify the details/ration cards vide Ex. PW5/A and after verifying the same he had furnished the report Ex. PW5/B. Though he had not personally verified the record but he had categorically stated that the same was checked by his office staff at his instance. Again suffice would be to say that if the defence doubted PW5's report nothing stopped the defence from summoning the record either by requesting deferring of his testimony or at the time of defence evidence. Having not done so, the arguments loose their force altogether. Similarly, once PW5 categorically stated that there was never any Fair Price Shop no. 4116 in circle no. 07 and therefore the ration cards in question could not have been issued, it was for the defence to prove that Fair Price Shop no. 4116 indeed existed or that its license if any, was ever cancelled or not. Though PW5 did state that he cannot comment whether there was any typographical mistake in the details of ration cards as mentioned in Annexure-1 of Ex. PW5/A, however, not only the list is available on record but also is the report and the entries in the survey lists. Defence could not point out any single error or typographical mistake in the list as was sent to PW5 viz-a-viz the ration cards available on CC No. 102/2019 CBI Vs. Braham Parkash and ors 109/216 record/entries in the survey lists. Therefore except for the bald arguments and the suggestions, the defence miserably failed to discredit the prosecution case based upon the testimony of PW5 and PW5/A. Reliance upon Indra Dalal Vs. State of Haryana 2015 AIR SCW 3474 does not come to the rescue of accused persons as the facts of the said case are entirely different. The reason for not considering the report of the Clerk from the RTO as a primary evidence, as regards the ownership of vehicle in question were many manifold. There was cutting in the entry of ownership, the original registration stood in the name of some other individual and no document regarding change of ownership was produced except for the report. In the case at hand the ration cards being fake only the report of FSO could be there.
8.29 As per the prosecution case it was Sh. Lal Mani who had prepared the above fake I cards & ration cards, however, vide orders dated 24.02.2016, he was discharged by the Ld. Predecessor of this court. Though Ld. Defence counsel vehemently argued that Lal Mani having been discharged, which order was never assailed by CBI and which thus attained finality, same is a grave missing link in the prosecution case, however, I find no merits in the said arguments. The deposition of PW3, PW4 & PW5 and report Ex. PW42/B and Ex. PW5/B leaves no doubt that the I cards and the ration cards were fake, forged documents. Defence could not prove anything to the contrary. No evidence whatsoever was led to contradict the prosecution case based on the testimony of the above witnesses and their reports. No effort whatsoever was made to prove that the said documents were not forged or fabricated. In fact a careful scrutiny of the CC No. 102/2019 CBI Vs. Braham Parkash and ors 110/216 cross-examination of the prosecution witnesses would reveal that not even a single suggestion was given to the prosecution witnesses that the individuals, entities in whose name the allotment was made or the I cards and the ration cards were made, were existing, real individuals and not fictitious persons. It will also be worthwhile to mention that during the investigation none of the persons in whose name the questioned entries/allotments were made were found in possession of the allotted plots. Furthermore what is quite strange is that the original Delhi Administration I cards and ration cards, which were actually fake, were handed over by these fictitious non existing allottees to the purchasers/those found in occupation/possession of the questioned plots, as were seized during the investigation from PW10, PW12 to PW22 and PW24 to PW28. Why somebody would handover the original I cards and ration cards to a purchaser sans logic. This itself proves that those persons never existed.
8.30 It will also be pertinent to highlight that Sh. Lal Mani was/is involved in around 20 other cases apart from the present one, which cases have/had the same modus-operandi as the present one. Apart from the present set of accused persons, including the deceased, there are other accused persons involved in those cases wherein too fraudulent allotments and subsequent sale of the alternate/allotted plots was carried out pursuant to larger conspiracy hatched by the accused persons. Sh. Lal Mani was discharged by the Ld. Predecessor on account of lack of evidence and the Ld. Predecessor had considered the CFSL results dated 05.08.2010 and 28.02.2011 while discharging him.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 111/216 Lack of evidence against Sh. Lal Mani though entitled him for the discharge, however, same cannot negate the prosecution case qua the remaining accused persons based upon the testimony of the above witnesses and the report which leaves no doubt that the I cards and the ration cards in question were forged & fabricated documents. The relevant portion of the order dated 24.02.2016 passed by Ld. Predecessor of this court as regards the involvement of Sh. Lal Mani in other cases is reproduced hereunder:-
"Though, Ld PP has referred to the oral testimonies of the above witnesses regarding the role played by this accused also, but it cannot be ignored that besides this case, this accused has been involved in 20 other cases and in all these cases, some fake or forged documents pertaining to the fictitious allotments involved in these cases were found to be either bearing his signatures or containing his handwriting, whereas no such questioned/fake document of this case is found to contain his writing or signatures."
Additional entries in the survey lists
9. Admittedly, there are certain entries/insertions for example 1866/1, 1977/1 2019/1, 2026/1 and overwriting against certain entries in the survey list Mark PW1/4 (D-11) for example 1803/1, 1807-A, 1845-A, 1862-A etc. which entries, overwriting against the entries are not in the handwriting of the FIs and the FIs as well as the prosecution witnesses failed to explain as to who had made these entries, moreover no investigation was carried out qua these entries, however, merely because these entries could not be explained and no investigation was conducted regarding these entries that by itself does not absolve accused no. 1 of his culpability. Question herein arises is that just because there might be some other fraudulent entries in the CC No. 102/2019 CBI Vs. Braham Parkash and ors 112/216 survey lists, though the defence has not led any evidence to convincingly prove the same, which were not investigated, can the accused be given benefit of the same. The answer is No. Merely because no investigation was conducted in respect of those entries, that by itself does not give accused no. 1 a clean chit qua the entries made by him in the survey list, which entries as discussed above, were subsequently made in the survey list pursuant to the larger conspiracy hatched to sell the plots in question in the open market.
9.1 Fact remains that questioned entries relating to the 25 plots which were investigated were made by accused no. 1 which also stands substantiated by the CFSL result i.e. Ex. PW40/F. Most importantly, it is not the defence's case nor could be proved on record that these other entires, insertions, pertained to any fictitious person or allottee or that the ration card & other identity documents furnished viz-a-viz these entries are also forged and fake. PW47 had specifically stated that the investigation was only confined the 25 plots/entries in question. The relevant portion of his cross-examination read as under:-
".............I have seen D-8, D-9, D-10 and D-11 i.e. survey lists during the course of investigation. The above-said survey lists were prepared by the Surveyors namely Kushal Pal Malik and Vijay Pal. I have seen the survey lists qua the 25 plots in question only with regard to the alleged interpolations. During the course of investigation, I had not checked the number of entries which were made by the Surveyors namely Kushal Pal Malik and Vijay Pal in D-8 to D-11.
Question: Whether during the investigation, you had inquired from Kushal Pal Malik and Vijay Pal as to how many entries they have made in D-8 to D-11?
Answer: I did not ask them as to how many entries were made by them in D-8 to D-11 (vol. during investigation, it was stated by Sh. Kushal Pal Malik and Vijay Pal that they were entrusted with the survey work of Alaknanda Camp and the survey lists were prepared by them, however, it was stated by CC No. 102/2019 CBI Vs. Braham Parkash and ors 113/216 them that the entries qua the 25 plots in question were not made by them).
Question: What do you mean by 'interpolation(s)'? Answer: By the said term, I mean to say 'subsequent addition(s)'.
During the investigation, it came to my notice that subsequent entries could not be made.
Question: Whether during the course of investigation, you had seen similar addition(s) made in D-8 to D-11 as alleged against the 25 entries in the present case?
Answer: I had not seen similar addition(s) made in D-8 to D- 11 as alleged against the 25 entries in the present case during he course of investigation (Vol. I did not consider any other entries during the investigation apart from the 25 entries, therefore I did not notice and cannot say whether there were similar additions or not as FIR was very specific and confined to 25 plots that too after a preliminary enquiry). Que: In your cross examination conducted on 01.11.2019, you have stated that there are other entries also apart from entries in respect of 25 plots which are subject matter of the present case, but they were not investigated by me. Such entries are obviously subsequent additions, but I cannot say whether they are interpolations or not. Today you have said that by Interpolations you mean subsequent additions. In view of your definition of interpolation, can you tell what is the difference between the other additions in D-8 to D-11 apart from the 25 entries which are the subject matter of the present case? Ans: Yes, there are several entries apart from the 25 entries in question, which are apparently similar and they would be interpolations if not written in the same transaction and by the same person (Vol. During the cross examination, when my attention was drawn to some other entries other than the 25 entries which were being investigated by me, then from naked eye, they also appeared to be some additions, however, as mentioned earlier, I cannot say for sure whether they are additions/ interpolations as they were not investigated by me)."
9.2 Though Ld. Defence counsel, while drawing attention to the cross-examination of PW1 and PW37, argued that there are contradictions in their testimony viz-a-viz entry no. 1866/1 as though PW1 stated that the said entry seems to have been made by PW37 whereas PW37 claimed that the said entry was in the handwriting of PW1, which contradiction according to Ld. Defence counsel not only renders PW1 & PW37 as CC No. 102/2019 CBI Vs. Braham Parkash and ors 114/216 unreliable witnesses but also creates doubt upon the prosecution case as a whole as regards the person who had made entries in Mark PW1/4, however, I find no merits in his arguments. At the outset it is to be kept in mind that this is not the questioned entry, was not the subject matter of investigation.
9.3 The minor/trifling contradiction as highlighted by Ld. Defence counsel is bound to occur with the passage of time. There is huge gap between the registration of the FIR, recording of statement of PW1 & PW37, their examination in chief as well as cross-examination which is spanning over a period of around one and half decade. Human memories are apt to blur with such huge passage of time. A person cannot be expected to give a parrot like version or depose with mathematical precision. Only a tutored witness can depose so. Error due to lapse of time/lapse of memory have to be given due weightage/ due allowance. By and large a witness cannot be expected to possess a photographic memory and to recall the minute details of an incident. It is not as if a video tape is replayed on the mental screen. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. Unless the defence is able to establish that the discrepancies or short coming or for that matter lacunas in the prosecution case have prejudiced the accused persons or rendered the prosecution case unreliable or untrustworthy, the same cannot be formed the basis of acquitting the accused.
9.4 It is settled proposition of law that even if there are CC No. 102/2019 CBI Vs. Braham Parkash and ors 115/216 some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. It is the duty of the court to sift through the evidence and ascertain as to whether the evidence minus the contradictions, improvements, embellishments inspire confidence and is sufficient to convict the accused. Undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution case.
9.5 It has been held in Zamir Ahmed Vs. The State 1996 Cri.L.J. 2354 as under:-
"It would be a hard nut to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tutored they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnesses with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words according to his own perception and in proportion to his intelligence power of observation."
9.6 Furthermore except for this minor contradiction, PW1 and PW37 corroborated each other as regards the other entries in Mark PW1/4. PW1 had stated that entry no. 1739/1, 1807-A, 1845-A, 1862-A etc. seems to be in the handwriting of PW37 and PW37 admitted having made the said entries in Mark PW1/4.
9.7 As far as numbers/entries 7835/J-398, 7833/J-438, 6593/J-245 and 6593/J-185 in the column no. 10 of the survey lists appearing in blue ink which according to PW37 were subsequently made and were not in the original lists and failure CC No. 102/2019 CBI Vs. Braham Parkash and ors 116/216 on the part of PW37 to give details of the person who made the abovesaid entries is concerned, it is to be seen that those entries were made after the allotment of the alternate plots to the JJ dwellers. These entries were made in the survey lists once the allotment process was completed, therefore, there was no occasion for these entries to be there in the original lists because the original lists only contained the details of survey and entries in column no. 10 were made in the copy of the lists after the allotment as was otherwise explained by PW37 when he stated "Copies of the original survey register are prepared in my office for the purpose of relocation of the jhuggi cluster and further proceedings".
Re-survey
10. It has also emerged on record that after the initial survey, a re-survey of Alaknanda jhuggi camp was carried out. Though PW1 during his examination in chief categorically stated that no re-survey was ever carried out during his tenure, however, during his cross-examination he admitted that a re-survey of 218 locked jhuggis was ordered to be conducted and that the same was done after a gap of 1 or 1 ½ months. The relevant portion of his cross-examination read as under:-
"The witness at this stage, explained the contents of aforementioned document in Hindi from Point X to X and it is suggested to him that for the reasons mentioned in said documents which have been explained to him, re-survey of the Alaknanda Jhuggi Camp was suggested. However, the witness categorically denies that any re-survey was conducted as suggested in the note.
The witness at this stage, explained the contents of aforementioned document in Hindi and it is suggested to him CC No. 102/2019 CBI Vs. Braham Parkash and ors 117/216 that re-survey of 218 locked Jhuggis was suggested by the Field Investigators with the Vigilance Team. The witness affirms that re-survey of 218 locked jhuggis was ordered to be conducted in the aforementioned manner.
The re-survey of aforementioned jhuggis was conducted after the gap of 1 or 1 ½ month. I cannot tell even after going through Mark PW1/4 as to which Jhuggi was re-surveyed by the Field Investigators alongwith the team of Vigilance. I do not remember whether at the time of re-survey of 218 locked jhuggis, the entires were made regarding the said jhuggis in the survey list Mark PW1/4 or the said entries were separately recorded."
10.1 Nonetheless, PW1 had during his examination in chief, categorically stated that if during re-survey a jhuggi had been left out then entry regarding the same was made separately in the separate register and no entry was made in the list already prepared. The relevant portion of deposition of PW1 read as under:-
"In the survey list we also used to mention the number of persons living in a particular jhuggi as mentioned in the ration card. In case if any jhuggi is left to be surveyed, the jhuggi dweller use to make a complaint to senior officer and senior officer used to order to re-survey of said jhuggi. However, we did not leave any jhuggi and made survey of all the jhuggi in the areas of our jurisdiction. In case, it is found during re-survey, that a jhuggi has been left out, then entry regarding that is made separately in the separate survey list and separate register. No entry is made in the survey list regarding the jhuggi found during re-survey in the already prepared survey list. No complaint regarding being a jhuggi left out during the survey conducted by me and Vijay Pal was received."
10.2 The fact that re-survey was conducted was also admitted by PW37 and though he also admitted that entries were made in the survey register which was already prepared at the time of first survey, however, PW37 nowhere stated that the entries, after the re-survey, were made in between the entries already existing in the survey list. He nowhere stated that insertions/entries were made in between the existing entries in CC No. 102/2019 CBI Vs. Braham Parkash and ors 118/216 the survey lists. He and the other FI as well as PW38 and PW39 had consistently deposed that the entries were made at the end of the survey list and not in between. The relevant portion of cross- examination of PW37 in this regard read as under:-
"Thereafter, resurvey of 218 locked jhuggies was conducted by the team of FIs with the officers of Vigilance. After resurvey, I made the entries of the resurveyed jhugges in the survey register, which was already prepared at the time of first survey."
10.3 The relevant portion of deposition of PW39 Sh. Paramjeet Singh who retired as Additional Director Survey, in this regard read as "In such cases, the entries of the such jhuggi are made in the end of the survey register duly signed by the Field Investigators and countersigned by the concerned Assistant Director"
10.4 Hence the fact remains that even if there was a re- survey, as also stands proved through the testimony of FIs i.e. PW1 and PW37, no entries in the survey list already prepared could be made and the entries if any on account of re-survey were to be made at the end of the list. There could not have been any fresh entries in between the entires already there in the survey list Mark PW1/1 to PW1/4. Furthermore the entries if any, after the re-survey, were to be made by the FIs only but as discussed above the questioned entries, which otherwise the defence could not prove were on account of re-survey, are in the handwriting of accused no. 1. A bare glance at the survey lists leaves no doubt that in the entries already existing in the survey lists and which entries were made by the FIs, the questioned entries were inserted, squeezed in between the said entries by accused no. 1.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 119/216 10.5 The relevant portion of deposition of PW38 Sh. Niwal Goel who was also an FI in this regard read as under:-
"In such cases, the entry of such jhuggi is made either in a separate list or at the end of the Survey Register, but no such entries can be inserted in between the entries in the Survey Register already made and no interpolation is made, and the Survey Register is never tampered with."
10.6 It was also one of the arguments of Ld. Defence counsel that as against the prosecution case that the survey was conducted under the supervision of accused no. 1, it stands proved on record that 80% of the survey was in fact completed during the tenure of erstwhile Assistant Director Sh. Paramjit Singh (PW39). It was argued that when 80% of the survey was completed during his tenure then there is no basis whatsoever for attributing the alleged insertions, interpolations/questioned entries to accused no. 1. However, I find no merits in his arguments. To begin with the above detailed discussion i.e. the testimony of the FIs and the CFSL result leaves on doubt that the insertions/interpolations in survey lists Mark PW1/1 to Mark PW1/4 were done by accused no. 1. Furthermore according to the consistent testimony of the FIs only the serial numbering of the jhuggies was done under the supervision of erstwhile Assistant Director Sh. Paramjit Singh (PW39) and that the survey was conducted under the supervision of accused no. 1. The relevant portion of the testimony of PW1 in this regard read as under:-
Examination in chief "The then Asstt. Director (Survey) Shri Paramjit Singh accompanied me and another FI Vijay Pal for JJ cluster, Alaknanad and on reaching the site, he instructed both of us to put a serial number on the jhuggi and then start survey from the said serial number of the jhuggi"
CC No. 102/2019 CBI Vs. Braham Parkash and ors 120/216 Cross-examination "It is incorrect to suggest that survey of Alaknanda jhuggi camp had started before Brahm Parkash became Assistant Director. Vol. Only the numbering had started"
10.7 The relevant portion of the testimony of PW37 in this regard read as under:-
"The survey of Alaknanda Camp was conducted by me and other Field Investigator Sh. Kushal Pal Malik under the order issued by Director, Land Management. The serial numbering of Alaknanda Camp jhuggis was done under the supervision of the then Assistant Director Sh. Paramjeet Singh. Thereafter, Sh. Paramjeet Singh was transferred from Land Management, South East Zone and in his place, Mr. Brahm Prakash joined as Assistant Director. The survey of Alaknanda Camp was conducted under the supervision of Brahm Prakash, Assistant Director and the allotments were made by Brahm Prakash."
10.8 During his cross-examination a suggestion was given to PW37 which read as " It is correct that numbering in respect of JJ Dwellers of Alaknanda Camp was done before accused Brahm Prakash took charge of said area". Similarly PW39 deposed as under:-
"The serial numbers on the jhuggis of Alaknanda JJ Camp by the Field Investigators was put under my supervision as Assistant Director. The rest of survey work was done under the supervision of Mr. Brahm Prakash, who had joined as Assistant Director after my transfer."
10.9 No doubt as per note dated 03.01.2002 at page no. 12 of Ex. PW47/A-5 of then FI Jai Parkash 80% of the survey work of Alaknanda Camp was conducted and PW39 in this regard deposed as under:-
"Ques:I put it to you that during your tenure as Assistant Director, 80% of survey work of Alaknanda Jhuggi Camp was conducted?
Ans: I am not sure about it.
The note dated 03.01.2002 at page no. 12 of Ex. PW47/A5 colly.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 121/216 (D-46) is signed by Sh. Jai Prakash, Field Investigator at point A. It is correct that as per the said note 80% of survey work of Alaknanda Jhuggi Camp was conducted......... .............It is correct that I was the Supervisor of the Field Investigators who had conducted 80% of the survey of Alaknanda Jhuggi Camp during my tenure."
however, it is to be seen that as explained by PW1 and PW37 only the numbering of the jhuggis was done and not the preparation of the survey list, making of the entries in the survey register. Most importantly, the question herein is not as to in whose tenure the survey work was conducted and completed or the percentage of the same. But the question is of making insertions, interpolations in the survey list, which as discussed above in detail was done by accused no. 1.
Demand letters
11. The second step in the relocation of the JJ dwellers was the issuance of demand letters. As far as the demand letters are concerned, according to PW1 for the allotment of the plots the eligible jhuggi dwellers were sent demand letters which were signed by accused no. 1. Relevant portion of his testimony in this regard read as under:-
"Thereafter, the same was further put up to higher officer for taking a decision on the subject. For allotment of the plots, the eligible jhuggi dweller was sent a demand letter. The demand letters were used to be signed by either Dy. Director or Asstt. Director of DDA. I do not remember in the present case, who had signed the demand letter. Again said perhaps it was Asstt. Director who had signed on the demand letter. Through the demand letters, the jhuggi dwellers were asked to deposit the fees. The demand letters were prepared as per Survey Register by entire team of Field Investigators (FI) and Ministerial staff. The demand letters after preparation were checked and signed by Asstt. Director or Dy. Director, as per the case."
CC No. 102/2019 CBI Vs. Braham Parkash and ors 122/216 11.1 Similarly PW37 categorically stated that the demand letters sent to the jhuggi dwellers asking them to deposit the documents, fees etc. were signed by accused no. 1. The relevant portion read as under:-
"For allotment of plots, the eligible jhuggi dwellers of Alaknanda Camp were sent a demand letter signed by the then Assistant Director, Brahm Prakash, asking them to deposit fees and documents etc. The demand letters were prepared as per survey register. The demand letters were checked and signed by the then Assistant Director Brahm Prakash. After depositing the required documents, they were annexed to the respected demand letters (copies). The receiving clerk put the stamp of DDA mentioning therein details of the drafts deposited by the jhuggi dwellers."
11.2 During the cross-examination of either PW1 or PW37 not even a single suggestion was given to them that the demand letters were not signed by accused no. 1 or that they were deposing falsely in that regard. So not only the prosecution's case remained unrebutted in this regard but even the CFSL result Ex. PW40/F, as discussed above in detail, squarely proves that the demand letters bear the signatures of accused no. 1 at questioned entries 433, 450, 451, 453, 512, 540, 595, 635, 637, 639, 678, 679, 681, 699, 738, 739, 765, 766, 768, 819, 848, 893, 912 etc. 11.3 It is the prosecution case that the demand letters were got issued to the allottees, by accused no. 1, without verification of the genuineness of the documents of the JJ dwellers. Per contra, it is the case of the defence that not only accused no. 1 had directed for verification of the documents of the JJ dwellers but the prosecution witnesses otherwise duly admitted that without verification of the ration cards, the plots were allotted to the JJ dwellers as no response used to be CC No. 102/2019 CBI Vs. Braham Parkash and ors 123/216 received from the Food & Supply Officer. It was argued that it was not the duty of accused no. 1 to verify the documents of the JJ dwellers.
11.4 It has emerged during the testimony of the FIs i.e. PW1 and PW37 that at the time of survey they used to check the ration cards, election cards & Delhi Administration cards issued by the government to identify the status of the JJ dwellers and also note down the particulars of the same in the survey register. The relevant portion of testimony of PW1 in this regard read as under:-
".......FI used to check ration card, election card and Delhi Administration ID card issued by the government to identify the status of JJ dweller at the relevant time. The particulars of above documents also noted by FI on the survey register......... We checked ration card and other documents shown by the jhuggi dweller and entered the particulars thereof in the survey register. We also entered details of jhuggi dwellers, i.e., name, parentage of jhuggi dweller, number of family members given in the ration card. We used to enter name of the jhuggi dweller and jhuggi number serial-wise in the survey register."
11.5 On similar lines is the deposition of PW37. There are three important points to note; firstly, the documents i.e. ration cards, I cards etc. were not taken by the FIs at the time of survey and only the particulars were noted. Secondly, as far as the questioned entries are concerned, they having been made subsequently by accused no. 1, there was no occasion for checking of the ration cards of I cards of those entities/individuals by the FIs at the time of survey. Thirdly, the documents i.e. ration cards, ID cards etc. were to be furnished by the allottees only after receipt of the demand letter along with the demanded fees.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 124/216 11.6 It has emerged from the testimony of the prosecution witnesses that without verification of these identity documents/particulars as noted down by the FIs in the survey lists, accused no. 1 directed issuance of the demand letters to the JJ dwellers. According to PW47 the documents of the jhuggi dwellers were to be verified by accused no. 1 and the survey team was not required to obtain documents such as ration card, Delhi Administration cards of the jhuggi dwellers at the time of survey. The relevant portion of his cross-examination in this regard read as under:-
"Question: Whether you were able to find out during the course of investigation at which stage, the documents of the jhuggi dwellers were required to be verified and by whom? Answer: They were required to be verified by Mr. Brahm Prakash after completion of the survey.
Question: Whether you were able to find out during the course of investigation that the survey team was required to obtain documents such as ration card, Delhi administration card of jhuggi dwellers at the time of survey?
Answer: Survey team was not required to obtain the above-said documents from jhuggi dwellers at the time of survey. However, the jhuggi dwellers were required to submit their documents after survey and prior to allotment of plot, but I do not remember the name or designation of the officers to whom the said documents were to be handed over.
Question: I put it to you that as per allotment letter, the documents such as photocopy of ration card, identity card and copy of token of the jhuggi were required to be submitted after issuance of the allotment letter has been made. What you have to say?
Answer: It is incorrect. (vol. The documents were required to be submitted by the claimants subsequent to issuance of 'Prastav avam Maang Patra'."
11.7 Though no doubt as per note at page no. 17/N of Ex. PW47/A-5 (D-46) accused no. 1 had asked to send the list of eligible JJ dwellers holding the ration cards for verification from the Food & Civil Supply Department, however, subsequently, as CC No. 102/2019 CBI Vs. Braham Parkash and ors 125/216 proved by PW37, accused no. 1 asked him to not to get the same verified. This proves that the note was initiated by accused no. 1 only to show that he was following the procedure on paper and to avoid being held responsible, liable subsequently if the verification resulted otherwise. His real intentions were to not to get the said documents, particulars verified or else the entire conspiracy hatched by him along with other accused persons would have failed. The relevant portion of the note and deposition of PW37 in this regard read as under:-
Note "Now if agreed we may issue provisional demand letters to the eligible JJ dwellers for the recovery of benefisheries share at the rate of Rs. 7000/- and 5000/- respectively for the purpose of relocation of the JJ dwellers.
It is further stated to avoid inconvenience in future. It is required to send a list of eligible JJ dwellers holding the ration card to get them verified from the Food and Civil Supply Department for the purpose of relocation.
Examination in chief of PW37 "I have been shown file already Ex. PW47/A-5 (Colly) (D-46) which is official file of DDA regarding relocation of the jhuggi cluster located at Alakhnanda area. Page no. 17 N of this file bears signatures of accused Braham Prakash at point A. In this notesheet in the last para, he had mentioned that it is required to send list of the eligible JJ dwellers holding the ration card to get them verified from the Food and Supply Department for the purpose of relocation. Thereafter, I have written on the notesheet that " a list of ration cards number alongwith the date of J.J.Dwellers of Alakhnanda Camp has been prepared and relocated alongside for concerned transmission to the Food Civil Supply Department to get verified from their records about there genuineness is added for signatures please". It bears my signature at point B. Accused Braham Prakash called me in chamber and told me to prepare demand letter and told me that it is not my job to verify the genuineness. Thereafter, no verification of the documents was done."
11.8 So according to PW37, after initiating the above note, accused no. 1 called him to his chamber and told him that it CC No. 102/2019 CBI Vs. Braham Parkash and ors 126/216 is not his job to verify the genuineness of the ration cards and accordingly no verification was got done. The said categoric deposition of PW37 remained unchallenged on this material aspect and I find no reasons to disbelieve him. But for the conspiracy, the interpolations made by him in the copy of the survey list whereby he added names of fictitious, non existing persons in the said list there was no reason for accused no. 1 to ask PW37 to do so i.e. to not to get the ration cards of the JJ dwellers verified.
11.9 The fact that the above note was initiated on 23.08.2002, the noting regarding sending the list of the ration cards to Food & Civil Supply Department for verification was made on 02.09.2002, however, the demand letters were issued vide noting dated 03.09.2002 i.e. the very next day further substantiates the testimony of PW37 and the prosecution case based upon the said noting i.e. that it was accused no. 1 who asked PW37 to not to get the ration cards verified because had the same been done it could have exposed his misdeeds, the interpolations made by him in the survey lists.
11.10 No doubt PW1 had stated that as far as verification of the ration card of the jhuggi dwellers is concerned, the same used to depend upon officer to officer and his testimony in this regard read as under:-
"Ques:Whether the ration cards of the jhuggi dwellers were used to be verified from the concerned department at the time of allotment of alternate plots?
Ans: It used to depend from officer to officer because some of the officers get verified and some of the officers did not get verified."
CC No. 102/2019 CBI Vs. Braham Parkash and ors 127/216 ,however, as discussed above, according to the unrebutted testimony of PW37, accused no. 1 had specifically called him in his chamber and told him that verification was not his job and accordingly the verification was not got conducted which is also evident from note dated 03.09.2002 vide which demand letters were issued to the JJ dwellers. Why accused no. 1 did so could not be explained by him and the only reason why he did so was to avoid his misdeeds coming to the fore.
11.11 Merely because PW39, during his cross-
examination, admitted as under:-
"Ques: Whether during your tenure as Assistant Director, before allotment of alternate plot to a jhuggi dweller, you got ration cards of the jhuggi dweller verified from the FSO or not? Ans: Yes I had written certain letters to FSO for verification of the ration cards of some of the jhuggi dwellers. Vol. But I had not received any response on said letters during my tenure. Ques: Whether the allotment in respect of the jhuggi dwellers whose rations cards were not yet verified by the FSO for lack of response from their side, were allotted alternative plots on relocation?
Ans: Yes. Vol. Subject to pending verification. The note at page no. 17-N, part of Ex. PW47/A5 colly. is correctly recorded as per the procedure and the same is duly approved by the Competent Authority.
The note at page no. 18, part of Ex. PW47/A5 colly. from point X to X1 is correctly recorded as per the procedure and the same is duly approved by the Competent Authority.
It is correct that after writing letters to the FSO for verification of the ration cards, the demand letters were issued to the JJ Dwellers without waiting for the verification report from the FSO in regard to the ration cards of the JJ Dwellers...... ............It is correct that without getting verification report from the FSO regarding the rations cards of the JJ Dwellers, they were relocated from the JJ Cluster to their respective plots allotted by the Delhi Development Authority. ........
that by itself does not come to the rescue of accused no. 1 for the simple reason that he had specifically told PW37 that verification of the documents was not his job and CC No. 102/2019 CBI Vs. Braham Parkash and ors 128/216 accordingly the verification of the ration cards was not got conducted.
11.12 In fact even if it is agreed that the allotments were made in favour of the JJ dwellers without verification of ration cards as a practice, as was stated by PW39, this in fact gave accused no. 1 the opportunity to carry out his role in the conspiracy, to give effect to the conspiracy. Being Assistant Director in the department, directly connected with the allotment procedure he was well aware of this lacuna, loophole in the allotment process and exploited the same. Being well aware that the reports as sought from the FSO were never received, accused no. 1 exploited the same to his advantage and it provided him the opportunity to make the fake & fictitious, questioned entries in the survey lists because he knew that in the absence of report from the FSO the allotment in the name of those fictitious entities, the questioned entries will go unnoticed.
11.13 In fact PW37 had further stated in his examination in chief as under:-
"On page no. 33 and at the end of the notesheet bears the signature of accused Braham Prakash at point A as Assistant Director (Survey) South East Zone. At page no. 34N, it bears signature of OSD Vinay Bhushan at point A. At page no. 34N and end page of the notesheet bears signature of Land Management Commissioner at point B. In this notesheet he had called explanation from accused Braham Prakash to explain on what basis he (accused Braham Prakash) asserted in para no. 3 at A on page no. 32N is made. There is no explanation on the record on behalf of accused Braham Prakash."
11.14 The relevant portions of the noting of accused no. 1 at page no. 32N, the observation made by OSD (LM)-1, DDA at CC No. 102/2019 CBI Vs. Braham Parkash and ors 129/216 page 34N and the noting of Land Management Commissioner vide which explanation of accused no. 1 was called, all part of Ex. PW47/A-5 (D-46) are reproduced hereunder:-
Noting on page 32N "3. As the relocation process is in peak and during this course of action number of applications/requests are being received directly or through Public leader for conducting survey. They are claiming that their name has been left out due to one or other reason such as either they were out of station or the survey team could not reach/idenify their jhuggies. Now at present about 145 J.J.dewellers have applied for their survey.
Accordingly the department tried to verify the position of some J.J. dwellers at site and revealed that there are some cases which had not been surveyed earlier due to the reason that this is very thickly populated and highly congested jhuggies cluster and there are very very narrow and inconvenient streets."
Noting on page 34N "It is quite surprising that relocation has started without carrying out the complete survey as per the observation of Asstt. Director (Survey), SE Zone in para 3 at page 32/N. Besides survey at this stage would create unnecessary problem and the gentunity of the occupants cannot be taken for granted at this late stage as number of uneligible persons can occupy the jhuggies for getting himself enrolled for allotment. If at all survey has to carry out. I have also visited the site along with Dy. Director(SEZ) and Asstt.Director on 15.11.02 and seeing the atmosphere I do not find any compelling reason for resurvey. Still due to the magnitude of relocation work, there can be few and far between cases which may have been left out. Therefore, for such cases Joint Director(LM)SEZ can ascertain the genunity and eligibility on merit through site inspection of individual cases and take action accordingly. ...........I agree with the above observation of OSD (LM)-I. The cluster has been surveyed before the process of relocation had started. Please call the explanation of the concerned AD to explain on what basis the assertion in para 3 at page 32/N is made."
11.15 In my considered opinion the note at page 32N was initiated by accused no. 1 to somehow cover up his tracks. The only reason the note was initiated was so that if tomorrow the interpolations come into light, are questioned he can somehow CC No. 102/2019 CBI Vs. Braham Parkash and ors 130/216 justify the same as having been made by the FIs on account of, after the re-survey. If the re-survey was conducted then the said interpolations in the survey list could have been explained as having been necessitated due to re-survey. It will also be pertinent to highlight that there is no explanation of accused no. 1 on record in Ex. PW47/A-5 as was sought vide the above noting.
11.16 During the course of investigation certain original documents were recovered from the occupants of the plots in question. As already discussed above, none of the entities/persons in whose name the allotments were made were found in possession of the questioned plot. For example the first questioned entry in the survey list bearing no. 24/1 is in the name of Smt. Shanti Devi and the alternate plot allotted to her bears the number 416 Pocket D Phase II. When the said plot was visited, during the investigation, one Narayani Devi (PW26) was found in occupation/possession of the plot and certain documents i.e. Ex. PW26/A (D-15) were seized from her vide Ex. PW26/B. Same is the position regarding the other questioned entries. These documents/files e.g. Ex. PW28/A (D-13), Ex. PW27/A (D-
16), Ex. PW22/B (D-18) etc. contain demand letters, some of which bears the dates 02.12.2002 and 04.12.2002. The backside of these demand letters bears the signatures of accused no. 1, the date as 13.12.2002 and he had also written the plot numbers on each demand letter as stands proved vide Ex. PW40/F, as discussed above in detail. However, it is interesting to see that in the allotment register Ex. PW46/A-5 (colly) (D-7), maintained by accused no. 1, entires have been made from 04.12.2002 onwards. As per record the demand letters were issued on 04.12.2002 and CC No. 102/2019 CBI Vs. Braham Parkash and ors 131/216 02.12.2002, however, the requests were received from the allottees on 16.12.2002 only along with the required documents which were notarized on 12.12.2002. Nonetheless the allotment/jhuggi nos. were allotted on 13.12.2002 itself. So even before the documents along with drafts were received, accused no. 1 had already allotted the jhuggi numbers. Accused no. 1 cannot explain and in fact completely failed to explain as to how the plot/jhuggi numbers were mentioned on the back of the demand letters, which bears his signatures and are dated 13.12.2002 when the requests along with the documents as per the demand letter were received from the allottees only on 16.12.2002 as is evident from the receiving given on the demand letters. All these allotments are in respect of the questioned entries in the survey lists Mark PW1/1 to Mark PW1/4. The relevant portion of the testimony of PW37 in this regard read as under:-
"I have been shown D-13, D-15, D-17, D-19, D-23, D-21, D-25, D-27, D-29, D-31, D-33, D-35, D-37, D-39, D-41, D-43, these files contain originals of various demand letters, allotment letters, Delhi Administration I-cards, GPAs and copies of the demand drafts, copies of the allotment of different plot numbers in the name of different persons. Some of the demand letters are dated 04.12.2002 and some are dated 02.12.2002. These demand letters bear the signature of accused Braham Prakash at the back side of it dated 13.12.2002, he had written plot numbers in his handwriting on each demand letters.
I have been shown register already Ex. PW-46/A5 (Colly) D-7, which is allotment register maintained in DDA office by accused Braham Prakash. In this register allotment entries are made from 04.12.2002 onwards. As per record, demand letters were issued on 04.12.2002 and 02.12.2002.
Request were received from allottees on 16.12.2002 alongwith the required documents notarized on 12.12.2002. Allotment letters are issued on 13.12.2002. It is not possible that allotment letters are issued before the receiving the documents with draft."
11.17 The fact that the backside of the demand letters bear CC No. 102/2019 CBI Vs. Braham Parkash and ors 132/216 the signatures of accused no. 1 and the plot number was also mentioned by him in his handwriting stands proved from the report Ex. PW40/F, as discussed above in detail. Some of the questioned entries as examined and returned with positive FSL report connecting accused no. 1 to them are Q434, Q468, Q542, Q601, Q681, Q701, Q712, Q741, Q768, Q795, Q821, Q850, Q857A, Q895, Q914, etc. 11.18 It will be worthwhile to highlight the following statement of PW-37:-
For allotment of plots, the eligible jhuggi dwellers of Alaknanda Camp were sent a demand letter signed by the then Assistant Director, Brahm Prakash, asking them to deposit fees and documents etc. The demand letters were prepared as per survey register. The demand letters were checked and signed by the then Assistant Director Brahm Prakash. After depositing the required documents, they were annexed to the respected demand letters (copies). The receiving clerk put the stamp of DDA mentioning therein details of the drafts deposited by the jhuggi dwellers. The draw of plots was conducted at the site of Alaknanda Camp at the time of demolition, plots numbers were alloted to the jhuggi dwellers. Slips containing plots numbers, plot area and plot address were made and pasted on sheets which were attached to the respective demand letters and bunch of the papers submitted by the particular jhuggi dwellers. The file number as mentioned in the demand letter was also written on the said sheet. Thumb impressions of the allottees were also taken on the said slips pastes on the said sheet. On the original demand letter, the alloted plot number and address were written. It was duly signed and stamped by the Assistant Director. In the case of Alaknanda Camp, it was signed by the then Assistant Director Brahm Prakash and was given to the jhuggi dwellers. Entry of the file number, name and jhuggi number of the allottee and the alloted plot number were also made in the allotment register. The thumb impression of the allottee was also taken in the allotment register. All this procedure was conducted side by side with the demolition. The entire residents of Alaknanda Camp were relocated in Madanpur Khadar. I can identify the survey list prepared during the above survey, if shown to me.
11.19 Though Ld. Defence counsel vehemently argued that CC No. 102/2019 CBI Vs. Braham Parkash and ors 133/216 after the demand letters were issued, the demand drafts were received at the DDA office, however, the prosecution miserably failed to prove that it was accused no. 1 who had received the said demand drafts. It was argued that not only it is not the prosecution case that the demand drafts were to be received by accused no. 1 but it is the proseuction's admitted position that the demand drafts were to be deposited in the main branch of DDA at INA. It was argued that the prosecution also failed to explain, prove on record as to with which specific branch/specific officer of DDA the demand drafts were to be deposited. It was also argued that only the demand drafts were deposited on 16.12.2002 and no documents, as mentioned in the demand letter, were deposited. It was argued that the prosecution also failed to verify the signatures appearing on the copy of the demand drafts on document D-13, D-17, D-21 Ex. PW22/C, D-23 etc. Ld. Defence counsel highlighted the following statement of PW47 in this regard:
"It could not ascertained during the course of investigation as to who was specifically earmarked for receiving the demand drafts or other papers submitted by the allottees. During the course of investigation I was not able to find out as to who was the officer of the DDA or the person concerned in front of whom the thumb impressions on the above said documents were taken...........
...........Que: Can you tell after receipt of demand letter by a jhuggi dweller, he has to approach which officer in DDA for further proceedings?
Ans: I cannot tell about the specific officer. (Witness answered the question after going through the entire record). Question: Can you tell as to how and by whom the demand letter was to be handed to Jhuggi Dweller?
Answer: I cannot tell the specific person designated for this purpose, however, the demand letter was to be handed over to the concerned jhuggi dweller by hand (witness answered the question after going through the entire record). The demand letter was not sent by post and the same was to be handed over to the concerned jhuggi dweller by the official of DDA personally.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 134/216 The documents mentioned in the demand letter were to be deposited in the main branch of DDA at INA. However, I do not know the specific branch/specific officer of DDA with whom the said documents were to be deposited. The documents mentioned in the demand letter were deposited in the DDA office, INA. As per the files i.e. D-13 to D-33, receipt stamp as shown on the backside of the photocopy of the demand drafts, the documents mentioned in the demand letter were deposited in the DDA office, INA on 16.12.2002.
Question: I put it to you that the receipt stamp as shown on the backside of the photocopy of the demand drafts is only with regard to the receipt of demand draft and not about the documents mentioned in the demand letter. What you have to say?
Answer: It is incorrect.
Question: Can you specify any portion on the receipt stamp as shown on the backside of the photocopy of the demand drafts, wherein it is recorded that the documents mentioned in the demand letter have been received?
Answer: There is no such mention of documents other than the demand draft (vol. the documents read in conjunction with the statement of witnesses from the DDA revealed that date of deposit of documents mentioned in the demand letter is 16.12.2002)........
...........The documents were required to be verified after the same were deposited with the DDA (vol. the same were required to be verified before the allotment of plots). I do not remember as to who was the then Joint Director (Demolition).
Question: I put it to you that the allotment of alternate plot to the J.J. dweller was to be made prior to demolition of jhuggies. What you have to say?
Answer:I do not remember (vol. however, the demand letters were issued before the demolition).
I was not able to verify the signatures in the encircled portion on the back of the copy of demand drafts, which are part of D13, D15, D17, D21, Ex.PW22/C, D23, Ex.PW22/E, D25, D27, D29, D31, D33, D35, D37, D39, D41 and D43.
I did not write any letter to the DDA in order to enquire as to who had received the demand drafts in respect of the plots in question, which are the subject matter of the present case. I had made enquiries from the officials of DDA in regard to the person whose signatures exist on the back side of the copy of demand drafts in the encircled portion, which are part of the subject matter of the present case. I had not recorded any statement of the witness to whom I had shown the signatures appearing on the above said demand drafts (Vol. The records were shown to the officials of DDA and the writings/signatures that they could identify were mentioned in their statements). I CC No. 102/2019 CBI Vs. Braham Parkash and ors 135/216 had not written any letter to the DDA enquiring about the officer who was authorized on behalf of the DDA to accept the demand drafts, which are subject matter of the present case. As far as I remember, Land Management (South-East Zone) of DDA was authorized to accept the demand drafts from the jhuggi dwellers in respect of the plots in question. During the course of investigation, I was not able to ascertain as to who were the officials posted in SEZ of DDA who were authorized to collect the demand drafts from the JJ dwellers. At the time of deposit of demand drafts, the JJ dweller was required to furnish copy of ration card, ID card, token of jhuggi etc. I do not know whether such documents were furnished by the jhuggi dweller at the time of deposit of demand drafts or not. I made enquiries from the witnesses to ascertain this fact, however, nobody was able to tell the said fact. I did not make any written inquiry from DDA officials whether documents i.e. copy of ration card, ID card, token of jhuggi etc were furnished by the jhuggi dweller at the time of deposit of demand drafts or not. I had not investigated any DDA official by the name of R.P. Singh, Assistant (Head Clerk) LM/SEZ/DDA."
11.20 As far as the said arguments are concerned, it has already been discussed above that much before the demand drafts were purportedly deposited by/on behalf of the JJ dwellers of the questioned entries/jhuggis, the jhuggi/alternate plot was alloted to them and the same was alloted by accused no. 1. The demand drafts were deposited on 16.12.2002 whereas the jhuggi number was allotted on 13.12.2002 itself and the said allotment of the jhuggi number is in the handwriting of accused no. 1 as has been discussed above in detail. Question herein arises is how accused no. 1 could presume on 13.12.2002 itself that the JJ dwellers to whom the demand letters were being issued would indeed deposit the fees/demand drafts as sought vide the demand letters and which has discussed above were shown to be deposited on 16.12.2002. Answer is as far as questioned entries are concerned, the demand drafts were already prepared by the co-accused persons, pursuant to conspiracy, about which fact accused no. 1, being part of the conspiracy, was well aware of. Knowing fully CC No. 102/2019 CBI Vs. Braham Parkash and ors 136/216 well that the demand drafts have already been prepared he allotted the plot number on 13.12.2002 itself, on the backside of the demand letters, without waiting for the deposit of the demand drafts, which as discussed above were deposited on 16.12.2002 and the necessary entires were also made in the allotment register.
Demand drafts/bankers cheque/manager's cheque/pay order
12. At this stage, it will be worthwhile to highlight that the demand drafts/bankers cheque/manager's cheque/pay order relating to the questioned entries were already prepared on 27.09.2002 and 28.09.2002 i.e. much before the issuance of the demand letters and allotment of the alternate plot number. This itself is enough/sufficient evidence pointing towards the conspiracy of which accused no. 1 was a part of.
12.1 All the demand drafts/bankers cheque/manager's cheque/pay order relating to the questioned entries, as per the prosecution case, were got prepared by deceased Ashok Malhotra. One of the questioned entry in the survey list is in the name of one Satyawan bearing entry no. 1763/1 in Mark PW1/4 (D11). The demand letter issued to him as was seized vide Ex. PW15/A from PW15 Sh. Ram Sagar along with other documents included copy of cash order bearing no. 719381 dated 27.09.2002 issued by Punjab National Bank Mall Road, Delhi. This cash order along with another cash order bearing no. 719382 was got prepared on the basis of requisition/pay slips which were seized vide Ex. PW11/A (colly) & Ex. PW46/A-6 and A-7 as proved by CC No. 102/2019 CBI Vs. Braham Parkash and ors 137/216 PW11 and PW46. As per the requisition slips one Rajeshwar Prasad r/o 1310, Mukherjee Nagar, New Delhi had applied for the said cash orders/banker cheques. So though the entry in the survey list Mark PW1/4 was in the name of Satyawan and the demand letter was also issued in his name, however, it was Rajeshwar Prasad who had applied for the cash orders/bankers cheques. But for the conspiracy there was no occasion for the requisition slips, on the basis of which the cash orders/bankers cheques were got prepared, to bear the name & address of Rajeshwar Prasad.
12.2 Though Rajeshwar Prasad was cited as a witness, however, he expired before his deposition could be recorded. The address given by Rajeshwar Prasad i.e. 1310, Mukherjee Nagar, Delhi is the address of deceased Ashok Malhotra. As explained by PW11, during his cross-examination, at that time when a person approached for issuance of banker's cheque/DD ID proof of the person was not required. This opportunity was exploited by the accused persons to prepare the demand drafts in the name of non existing, fictitious persons or else why Rajeshwar Prasad would apply for preparation of demand draft in the name of Satyawan that too almost 3 months before the issuance of demand letter. This was all part and parcel of the conspiracy.
12.3 Apart from the above cash orders/bankers cheques, other demand drafts were also got prepared in the same manner. Another questioned entry in the survey list Mark PW1/4 is 1942/1 (D11) in the name of Vinod Kumar. The demand letter as issued to him on the basis of said entry was seized along with CC No. 102/2019 CBI Vs. Braham Parkash and ors 138/216 other documents including copy of bankers cheque bearing no. 069416 from PW17 Sh. Chotey Lal vide Ex. PW17/A. During investigation of the said bankers cheque it was revealed that same was got prepared on the basis of requisition slips dated 28.09.2002 as were seized vide Ex. PW9/A dated 07.09.2009. Herein again Sh. Rajeshwar Prasad had applied for issuance of demand draft/banker's cheque vide applications Ex. PW9/B (colly) against cash payment as the requisition slip bore his name and the address as 1310, Mukherjee Nagar, Delhi.
12.4 As discussed above, all the requisition slips on the basis of which the bankers cheques/cash orders/demand drafts/pay orders were got prepared in the name of the fictitious/ non existing persons i.e. the questioned entries in the survey lists Mark PW1/1 to Mark PW1/4 bear the name of Rajeshwar Prasad i.e. 719381, 719382 (of PNB Mall Road Branch & seized vide Ex. PW11/A (colly)), 028218, 028215 (of Bank of India Kamla Nagar Branch & seized vide Ex. PW2/A), 069410, 069416 (State Bank of India Kamla Nagar Branch & seized vide Ex. PW9/A), 890199, 890217, 890198, 890202 (of State Bank of India Roop Nagar Branch & seized vide Ex. PW8/A), 423915, 423918, 423922, 423923, 423935, 423939 (of UCO Bank, Mukherjee Nagar Branch & seized vide Ex. PW47/A-3), 663683, 663692, 663680 (of Bank of Maharashtra, Mukherjee Nagar Branch & seized vide Ex. 46/A8), 912048 (of State of Bank of India, Old Secretariat & seized vide Ex. PW46/A12), 150617, 150621, 150618, 150620, 150619 (of UCO Bank, Shopping Complex, South Patel Nagar Branch & seized vide Ex. PW6/A). All these requisitions slips bear the address as 1310, Mukherjee Nagar, CC No. 102/2019 CBI Vs. Braham Parkash and ors 139/216 Delhi which is of deceased Ashok Malhotra and 471B, East Loni Road, Delhi which is Rajeshwar Prasad's own address.
12.5 Though Ld Defence counsel argued that PW2 during his examination in chief had admitted that he has no personal knowledge about the documents in question i.e. the requisitions slips as seized vide Ex. PW2/A as he was not posted in the branch when the requisition slips were filled, however, the said statement of PW2 does not affect the prosecution story in any manner. Fact remains that the requisition slip as was handed over by PW2 vide Ex. PW2/A bear the name of Rajeshwar Prasad and the address as 1310, Mukherjee Nagar, Delhi. The role of this witness was only confined to handing over of the official record of the bank i.e. the requisition slips. His personal knowledge or lack of the same regarding the said document is of no significance.
12.6 During the course of investigation CBI had also seized certain documents from Sh. V.K. Bajaj, Manager UCO Bank, Shopping Complex Branch vide Ex. PW6/A and Ex. PW6/B. Vide Ex. PW6/A requisition slip/voucher dated 11.12.2002 i.e. Ex. PW6/C in the sum of Rs. 25,200/- was seized. Against the said requisition slip 5 Manager's cheques bearing no. 150617 to 150621 i.e. Ex. PW6/D1 to Ex. PW6/D5 for an amount of Rs. 5000/- each were got prepared and they were handed over to Branch Incharge Sh. Vinay Sethia (PW36). In fact as per Ex. PW6/C and as deposed by PW6 against the name and other details of the applicant on Ex. PW6/C the name of Sh. Vinay Sethia is written. As far as Manager's cheque bearing no.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 140/216 150617 is concerned, copy of the same was seized from PW21 Sh. Ramdass Gupta and it corresponds to, is related to questioned entry bearing no. 1605/1 (D10) in the name of Om Parkash. The other Manager's cheques as above also relate to other questioned entries for example Manager's cheque bearing no. 150618 corresponds, is related to entry no. 1757/1 (D11) in the name of Hira Devi.
12.7 It is the prosecution case that the above Manager's cheques were issued with reference to Sh. Vinay Sethia, Incharge of the bank and that they were got prepared with his reference at the instance of Ashok Malhotra as Ashok Malhotra and Vinay Sethia were known to each other. No doubt PW6 stated that he does not know any Ashok Malhotra nor the purpose for which the Manager's cheque were got issued, however, as per the unrebutted, unchallenged testimony of PW6 the Manager's cheques were issued with reference of Branch Incharge Sh. Vinay Sethia and after preparation he had handed over the same to Sh. Vinay Sethia. As explained by PW6, as the Manager's cheques were issued with the reference of Sh. Vinay Sethia, there was no requirement to fill up the details of the applicant. These Manager's cheques having been used by the fictitious/non existing allottees towards payment of fees as per the demand letter and their copies having been recovered from PW12 Raghunandan, PW21 Ramdass and PW22 Bhagwan Dass Sahai proves the prosecution conspiracy theory.
12.8 During his examination Sh. Vinay Sethia (PW36) admitted that he was knowing Ashok Malhotra as well as his CC No. 102/2019 CBI Vs. Braham Parkash and ors 141/216 driver Pappi. The relevant portion of his examination in chief in this regard read as under:-
"I have retired in April 2017 as Sr. Manager from UCO Bank. From 2000 till 2005, I was working as Manager in 58-59, Shopping Complex, South Patel Nagar, New Delhi-58 branch of UCO Bank.
I am living at N-36, Ground Floor, Dr. Mukherjee Nagar, New Delhi -110009 since 1986. I know Ashok Malhotra as he was my neighbour. Ashok Malhotra had availed two loans under the scheme of UCO mortgage. After completing the formalities for availing the above said two loans, he never visited the branch. Ashok Malhotra's driver used to visit the branch for the bank work. Most probably, his name was Pappi. Besides Ashok Malhotra in his family, I know his wife also."
12.9 The fact that the requisition slip Ex. PW6/C was used for the preparation of the above Manager's cheques/demand drafts at the request of Ashok Malhotra also stands proved from the following cross-examination of PW36:-
"The requisition slip Ex. PW6/C was already filled up at the time when the same was handed over to me. Vol. Ashok Malhotra had telephonically asked me to make five drafts and he is sending his driver to me for this purpose. I do not know who had filled up the requisition for the purpose of making the drafts."
12.10 No doubt PW36 denied that he got the drafts Ex. PW6/D1 to D5 issued as an applicant and also stated that though in the requisition slip Ex. PW6/C the applicant's name is mentioned as Vinay Sethia but he is not the same Vinay Sethia, however, that part of his testimony is nothing but falsehood. PW6's unrebutted testimony leaves no doubt that the Manager's cheques were issued with his reference and were also handed over to him after preparation. I am also not inclined to believe PW36's statement that the requisition slip was already filled when Ashok Malhotra's driver handed over the same to him in his chamber and he just called his subordinate to issue the pay CC No. 102/2019 CBI Vs. Braham Parkash and ors 142/216 orders without seeing what is written over the requisition slip. He made false statement to that effect merely to save his own skin. Being the Incharge of the Bank, in my considered opinion, he would have never acted such irresponsibly, carelessly. Moreover he admitted having asked his subordinate to issue the pay order. The relevant portion read as under:-
"Que:Can you tell after going through the document Ex. PW6/C as to who was the applicant, who made request for issuance of the manager's cheques Ex. PW6/D1 to Ex. PW6/D5? Ans: On seeing the Ex. PW6/C, I can say that the applicant's name written in the requisition slip is Vinay Setia, but I deny that I am not that Vinay Setia who has been reflected as an applicant. Que:As you have stated that the driver handed over the requisition slip already filled to you in your chamber, can you tell whether the name Vinay Setia was written in the requisition slip at the time when the same was handed over to you or not? Ans:The driver came to the chamber and I was occupying my chair and immediately I called my subordinates to issue the pay orders without seeing what is written over the requisition slip."
12.11 Add to it the testimony of PW6 as discussed above and as reproduced hereunder:-
"As per practice and procedure, the signatures of the applicant were also required to be taken on the reverse side of the requisition slip, in token of receipt of the Manager's cheque issued against the said requisition slip. However, on the reverse side of Ex.PW6/C, there are no such signatures put in token of receiving of the above five Manager's cheque. Since the name of Mr. Vinay Sethia is written in the relevant column pertaining to the applicant and no details of the applicant are mentioned in the above requisition slip Ex.PW6/C and further since there are also no signatures on the reverse side of the above slip Ex.PW6/C in token of handing over or receiving of the above Manager's cheques, I can say that the above Manager's cheques were issued with reference of Mr. Vinay Sethia."
12.12 In fact during investigation PW36's statement was recorded by the IO u/s 161 Cr.P.C. wherein he had stated that the drafts were got prepared at the instance of deceased Ashok Malhotra. Though during his cross-examination he disowned a CC No. 102/2019 CBI Vs. Braham Parkash and ors 143/216 part of his statement, however, same, as discussed above, was done to save his skin. The relevant portion of his statement Ex. PW36/DA in this regard read as under:-
"I remember that Mr. Ashok Malhotra had telephone me. He said that he is sending one of his people and requested a few drafts may please be made urgently. Thereafter one of his drivers, came to me in the branch and said that 'Malhotra sahaab ne draft banane ke liye bola hai'. He gave requisite amount in cash which I gave to one of my subordinates to do the needful."
12.13 The relevant portion of his cross-examination in this regard read as under:-
"The document Ex. PW6/D1 to Ex. PW6/D5 were shown to me by the CBI during investigation. CBI had recorded my statement and the said statement was read over to me by the CBI.
Que:The witness has been shown his statement recorded during the course of investigation U/s 161 Cr.P.C. and has been asked as to whether in his statement made to the CBI during the course of investigation ever stated "thereafter, one of his drivers came to me in the branch and said that Malhotra sahab ne draft banane ke liye bola hai, he gave requisite amount in cash, which I gave to one of my subordinates to do the needful". What do you have to say? Ans:Witness after going through the same has stated that the entire statement is correct except the fact which is stated as "that he gave requisite amount in cash which I gave to one of my subordinate to do the needful". The portion Mark X to X1 has been wrongly recorded by the CBI in my statement. The statement is now Ex. PW36/DA."
12.14 It could not be explained by the defence as to why the IO would record a false, incorrect line in statement Ex. PW36/DA which admittedly was read over to PW36. PW36 admitted having made the entire statement except for one sentence i.e. Mark X to X1 as discussed above which itself proves that he was making a false claim qua the statement Mark X to X1, during his deposition. IO had no axe to grind against Ashok Malhotra or for that matter the other accused persons. Defence could not prove that IO was having any enmity, grudges against any of them so as to record a false statement of a witness.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 144/216 12.15 At this stage, it will be worthwhile to highlight the testimony of PW33 Sh. Vinod Kumar Bajaj who was posted as Manager UCO Bank Shopping Complex Branch who deposed as under:-
Examination in chief "The five Banker's Cheques issued on account of Ex. PW6/C were paid for in cash. The name of the party who has applied and has got the five Banker's Cheque Ex. PW6/D1 to Ex. PW6/D5 is given as Vinay Setia in Ex. PW6/C. Vinay Setia was the Sr. Manager in UCO Bank. Being Sr. Manager was given the privilege because of which he was not required to pay commission for issuance of pay order or Banker's Cheque. Vol. But in this case, Vinay Setia has paid the commission. No address, telephone number or any other indication about the party/Vinay Setia who got five Banker's Cheque is mentioned on Ex. PW6/C."
Cross examination "In case of customer, if mandatory columns in the requisition slips are not filled, the bank will not issue the Banker's Cheque. However, in case of a bank staff member more particularly Sr. Manager, Banker's Cheques can be issued even if the mandatory columns in the requisition slip are not filled."
12.16 No doubt PW33 admitted that the requisition slip Ex.
PW6/C was not filled in his presence nor he was posted in the branch at the relevant time, however, from the testimony of PW6 and PW36, as discussed above in detail, no doubt remains that the requisition slip was made with reference to Sh. Vinay Sethia who got the demand drafts prepared at the instance of Ashok Malhotra and that is why it did not contain the particulars of the customer.
12.17 The pay orders/bankers cheques Ex. PW6/D1 to D5 were made by PW35 Ms. Sadhna Malhotra and she categorically CC No. 102/2019 CBI Vs. Braham Parkash and ors 145/216 deposed that the same were prepared at the instance of Sh. Vinay Sethia. The relevant portion of her deposition is reproduced hereunder:-
"On being shown application/requisition form for issuance of bankers cheque already Ex. PW6/C and 5 pay orders/bankers cheques/managers cheques issued from UCO Bank, Shopping Complex, South Patel Nagar Branch, dated 11.12.2002 for the amount of Rs. 5,000/- each favouring DDA already Ex. PW6/D1 to Ex. PW6/D5, the witness has stated that Ex. PW6/D1 to Ex. PW6/D5 were made by her and are in her handwriting, which she recognized today in the court.........Ex. PW6/D1 to Ex. PW6/D5 have been issued against the cash deposited by the buyer as shown by requisition slip which is already Ex. PW6/C. Ex. PW6/D1 to Ex. PW6/D5 were issued on the direction of the then Sr. Manager of UCO Bank, Shopping Complex, South Patel Nagar Branch.
It is mandatory that the particulars of the party (name, address, signatures etc) getting the pay orders/bankers cheques/managers cheques/DDs be mentioned in the requisition slip particularly when the instruments are being issued against the cash so that the buyer of the instrument can be identified and contacted, if needed. It is the duty of the person/staff who prepares pay orders/bankers cheques/managers cheques/DDs and the officers who sign the same to ensure that the particulars are mentioned on the requisition slip before processing the same. In case, if the requisition slip/application has reference from staff of the bank/branch, the requirements regarding name, address, telephone, signatures or receiving are bypassed."
12.18 The above testimony remained unrebutted during the cross-examination and only one suggestion was given to her which no way challenges the deposition, statement made by PW35 and which is otherwise consistent with the testimony of other prosecution witnesses as discussed above. The relevant portion of cross-examination of PW35 read as under:-
" I have not made any complaint against Mr. Vinay Setia and Mrs. Saroj Obi to my senior Officers regarding the directions given by them for preparing the drafts in question. I have not even made any complaint after the CBI investigated me in the present case."
12.19 Merely because she did not make any complaint CC No. 102/2019 CBI Vs. Braham Parkash and ors 146/216 against Sh. Vinay Sethia does not mean that she was deposing falsely. It is not always easy for a subordinate to make complaint against his/her senior. Hence it stands proved on record that the pay orders/bankers cheques/Manager's cheques/demand drafts in question were got prepared by deceased Ashok Malhotra through deceased Rajeshwar Prasad.
12.20 Coming back to the demand letters and the survey lists, in survey list D-8 the first questioned entry Q397 is in the name of Shanti Devi bearing Sl No. 24/1. As per the survey lists Mark PW1/1 to PW1/4 she was shown to be occupant of jhuggi no. B- 77, which entry as discussed above is in interpolation in the survey lists, which interpolation, insertion was made by accused no. 1. Qua this entry the plot allotted, as per the back side of the demand letter (which bears the signatures of accused no. 1 and is dated 13.12.2002) is plot no. 416, Pocket D. The said demand letter along with other original documents was seized from Smt. Narayani Devi vide seizure memo Ex. PW26/B. 12.21 Similarly, demand letters were also seized from PW10, PW12, PW13, PW14, PW15, PW16, PW17, PW18, PW19, PW20, PW21, PW22, PW24, PW25, PW26, PW27, PW28 and PW31 along with other documents. These demand letters are in respect of the questioned entries and in all the seized demand letters i.e. Ex. PW10/A (jhuggi no. A-266), Ex. PW12/A (jhuggi no. A-217), Ex. PW13/A (jhuggi no. B-135), Ex. PW14/A (jhuggi no. A-245), Ex. PW14/C (jhuggi no. A-344), Ex. PW15/A (jhuggi no. B-165 and A-208), Ex. PW17/A (jhuggi no. C-43 and C-121), Ex. PW18/A (jhuggi no. A-38) Ex. PW19/A CC No. 102/2019 CBI Vs. Braham Parkash and ors 147/216 (jhuggi no. C75), Ex. PW20/A (jhuggi no. A90), Ex. PW21/A (jhuggi no. A-223 and B-152), Ex. PW22/A (jhuggi no. B-31 and A-74 (copy of demand letter), Ex. PW26/B (jhuggi no. B-77) Ex. PW27/B (jhuggi no. C-33), Ex. PW28/A (jhuggi no. 235A and C-74), Ex. PW47/A1 (jhuggi no. B-189 and A-251) the plots have been allotted to these entities in whose name fake, fictitious/questioned entries were made in the survey lists, as already discussed above. The plot numbers so allotted i.e. 11, 355, 417, 438, 439 etc. respectively are in the handwriting of accused no. 1 and also bears his signatures as is evident from Ex. PW40/F, which has been discussed in detail above.
Deposit of fees/demand drafts, draw of plots and allotment
13. After the issuance of the demand letters and deposit of fee by the jhuggi dwellers, the draw of plots used to take place and as per the draw, the successful candidates were given allotment slip which was signed by the Assistant Director or the Deputy Director. For this purpose an allotment register was also prepared. The relevant portion of the testimony of PW1 in this regard read as under:-
"Thereafter, draw of plots used to be made through parchi system. After the draw of plots the parchies of the successful candidates used to be separately kept and said candidates were given allotment slip in respect of the plot allotted to them. The allotment slip was used to be signed by either Asstt. Director or Dy. Director. I do not remember as to after the issuance of allotment what other document were used to be prepared. Again said, perhaps, an allotment register was also maintained in this regard. The allotment register was maintained by any one of the staff member deputed by the senior officer.
13.1 PW1 identified the allotment registers for 18 sq. meter plots and 12.5 sq. meter plots as PW46/A-5 and A-4 CC No. 102/2019 CBI Vs. Braham Parkash and ors 148/216 respectively and deposed that in the allotment registers the jhuggi dweller used to put their thumb impression against their respective entry in the presence of Assistant Director i.e. accused no. 1.
13.2 According to PW37 the draw of plots was conducted at the site of Alaknanda Camp at the time of demolition and the plot numbers were allotted to the jhuggi dwellers. His testimony in this regard read as under:-
"The draw of plots was conducted at the site of Alaknanda Camp at the time of demolition, plots numbers were alloted to the jhuggi dwellers. Slips containing plots numbers, plot area and plot address were made and pasted on sheets which were attached to the respective demand letters and bunch of the papers submitted by the particular jhuggi dwellers. The file number as mentioned in the demand letter was also written on the said sheet. Thumb impressions of the allottees were also taken on the said slips pastes on the said sheet. On the original demand letter, the alloted plot number and address were written. It was duly signed and stamped by the Assistant Director. In the case of Alaknanda Camp, it was signed by the then Assistant Director Brahm Prakash and was given to the jhuggi dwellers. Entry of the file number, name and jhuggi number of the allottee and the alloted plot number were also made in the allotment register. The thumb impression of the allottee was also taken in the allotment register. All this procedure was conducted side by side with the demolition. The entire residents of Alaknanda Camp were relocated in Madanpur Khadar."
13.3 Furthermore according to PW1 it was the duty of accused no. 1 to check the genuineness of the documents submitted by the jhuggi dwellers at the time of deposit of fee. The relevant portion read as under:-
"The genuineness of the photocopies of the documents submitted by the jhuggi dwellers at the time of deposit of fee is to be checked by the senior officers either Assistant Director of Deputy Director. In the present case, the duty to check the genuineness of the documents of the allottees was that of Braham Prakash, the Assistant Director. "
CC No. 102/2019 CBI Vs. Braham Parkash and ors 149/216 13.4 As regards the allotment it was argued by Ld. Defence counsel that in the allotment register Ex. PW46/A-4 (D-
6) & PW46/A-5 (D-7), signatures/thumb impression of the allottees were admittedly taken by the FIs and accused no. 1 had absolutely no role to play in the same. It was argued that as per the deposition of PW1 and PW37, if they were obtaining the signatures/thumb impressions of the allottees in the allotment registers and it is the prosecution case that the allottees were fictitious, non existent persons then the prosecution has failed to explain as to how did the FIs obtain the signatures/thumb impressions of the persons who never existed. Ld. Defence counsel pointed out the following statements of PW37 made by him during his examination in chief and cross-examination:-
Examination in chief "Entry of the file number, name and jhuggi number of the allottee and the alloted plot number were also made in the allotment register. The thumb impression of the allottee was also taken in the allotment register. All this procedure was conducted side by side with the demolition."
Cross-examination "The allotment register Ex. PW46/A4 (colly) (D-6) and allotment register Ex. PW46/A5 (colly) (D-7) were never signed by the officers of DDA. It is correct that the signatures of the allottees on the allotment register Ex. PW46/A4 (colly) (D-6) and allotment register Ex. PW46/A5 (colly) (D-7) were taken by the Field Investigators at the site.
It is correct that in respect of the Alaknanda Jhuggi Camp, I and Kushal Pal Malik were the only Field Investigators. It is correct that we had taken signatures of allottees on allotment register Ex. PW46/A4 (colly) (D-6) and allotment register Ex. PW46/A5 (colly) (D-7)..............
...............It is correct that the allotment of alternate plot to the JJ Dweller was done at the site itself and their belongings were shifted by the DDA on the official transport from the site to the alternate allotted plot.........
Ques: Whether he used to take signatures of any DDA Officers on the allotment register Ex. PW46/A5 and Ex. PW46/A4 colly. or not?
CC No. 102/2019 CBI Vs. Braham Parkash and ors 150/216 Ans: No. Ques: At the time when you used to obtain signatures and thumb impressions of allottees on Ex. PW46/A5 and Ex. PW46/A4 colly. who else were present alongwith you? Ans: Assistant Director, Field Investigator and Process Server used to be also present there."
13.5 As far as the said argument is concerned, the CFSL result Ex. PW40/F, as discussed above in detail, leaves no doubt that the questioned entries no. Q352 to Q394 in the allotment registers are in the handwriting of accused no. 1. Question herein is as to why all the questioned entries in the survey list, insertions, interpolations made in the same and the corresponding entries qua those fictitious allottees in the allotment registers are in the handwriting of accused no. 1. This is not a mere coincidence but was done clandestinely by accused no. 1 pursuant to conspiracy hatched by him and the other accused persons. Moreover as discussed above the allotments were already done by accused no. 1 on 13.12.2002, much before the deposit of the documents/fees by the fictitious allottees, which was done on 16.12.2002.
13.6 As far as the signatures and thumb impressions of the allottees in the allotment registers are concerned, PW37 nowhere stated that at the time when the signatures/thumb impression of the allottees were obtained in the allotment registers their identity, documents were got checked by them. It cannot be completely ruled out that as per the conspiracy, certain individuals impersonated themselves as the alleged allottees and affixed their signatures/thumb impressions on the allotment registers. This is more so when the allotment registers remained in the possession of accused no. 1 as stated by PW37 during his CC No. 102/2019 CBI Vs. Braham Parkash and ors 151/216 cross-examination. The fact that the allotment registers remained in the possession of accused no. 1 not only gave him ample opportunity/occasions to make the questioned entries in the same but also to obtain the thumb impression/signatures qua the fictitious persons/allottees. It is not as if he had merely made the questioned entries in the allotment registers and left the task of obtaining signatures/thumb impressions upon the FIs or any other official of DDA. The signatures/thumb impressions were simultaneously obtained at the time of making the entries. Leaving the questioned entries blank, without signatures or thumb impression would have raised suspicion. It has emerged from the above testimony of PW37 and also is evident from the testimony of PW1 that the thumb impressions/signatures were obtained simultaneously at the time of allotment and the same was done in the presence of accused no. 1. The relevant portion of PW37's cross-examination in this regard is reproduced hereunder:-
"The allotment register Ex. PW46/A5 and Ex. PW46/A4 colly. were in the possession of accused Brahm Prakash at the time of relocation. We never used to mention the date of allotment or of possession in the abovesaid allotment registers. The registers used to be returned back to the accused Brahm Prakash after making entires in the said registers at Site. The said register used to be returned to the accused in his office. No officer used to counter sign the said registers.
Ques: Whether he used to take signatures of any DDA Officers on the allotment register Ex. PW46/A5 and Ex. PW46/A4 colly. or not?
Ans: No. Ques: At the time when you used to obtain signatures and thumb impressions of allottees on Ex. PW46/A5 and Ex. PW46/A4 colly. who else were present alongwith you?
Ans: Assistant Director, Field Investigator and Process Server used to be also present there.
I was asked during investigation as to who is the custodian of the survey register to which I told CBI that same is lying with the senior officers of DDA i.e. Assistant Director and Deputy Director."
CC No. 102/2019 CBI Vs. Braham Parkash and ors 152/216 13.7 In this regard PW1 during his examination in chief deposed as under:-
"At this stage, witness is shown D-7, A register bearing description "Delhi Vikas Pradhikaran, Allotment Register of 18 sq. mtr", already Ex. PW46/A-5 (colly). In the allotment Register the jhuggi dweller use to put their thumb impression against their respective entry in the presence of Asstt. Director, DDA. The Asstt. Director at that time was used to be Sh. Braham Prakash.
At this stage, witness is shown D-6, already Ex. PW-46/A4- ( bearing description Alak Nanda 12.5 sq. mtr Madanpur Khadar). In the allotment Register the jhuggi dweller use to put their thumb impression against their respective entry in the presence of Asstt. Director, DDA. The Asstt. Director at that time was used to be Sh. Braham Prakash."
13.8 Hence according to PW1 as well the thumb impressions were taken in the allotment registers in the presence of accused no. 1. This part of the testimony of PW1 remained unchallenged during the cross-examination. With the thumb impressions being taken in the presence of accused no. 1 and considering the evidence in its entirety I have no doubt that accused no. 1 obtained the thumb impressions/signatures of the fictitious, non existing persons through the co-accused persons who were part of, used in the conspiracy.
13.9 PW39 had also categorically stated that "The allotment is made and allotment is done under the direct supervision of the concerned Assistant Director." Hence it was accused no. 1 who was managing, manipulating the entire process.
Possession
14. As far as the possession of the allotted plots to the CC No. 102/2019 CBI Vs. Braham Parkash and ors 153/216 individuals/entities in whose names questioned entries were made in the survey lists is concerned, the possession was never handed over to those allottees. In fact the possession could not be handed over to the allottees because all the allottees, of the 25 questioned plots, were fictitious, non existing persons. Forged and fake documents i.e. ration cards, Delhi Administration identity cards etc. were prepared in the name of non existing entities/individuals merely to show the allotment in their favour so that the plots could be sold in the open market showing these non existing individuals/entities as the purported sellers, so as to complete the chain of transaction/sale. The relevant portion of the cross-examination of PW47 in this regard read as under:-
"The possession of the 25 plots, which are subject matter of the present case, was never handed over to the allottees. Que: Whether the actual physical possession of the plots in question was ever handed over to any person or not? Ans: No. During the course of the investigation, I came to know that the possession of the plots in question was with the subsequent buyers.
Que:Whether you were able to find out during the course of investigation as to how the first seller of the plots in question came into physical possession of the plots in question? Ans:The first seller of the plots in question came into physical possession of the plots through fraudulent means (Vol. These plots were sold by the accused persons who had got them allotted in the name of fictitious persons)..........
14.1 Though Ld. Defence counsel vehemently argued that no evidence could be gathered, during the investigation, as regards the handing over of possession to the allottees which according to him is another lacuna in the prosecution case, however, in my considered opinion as regards the questioned entries there could not have been any evidence in this regard because the possession was never handed over to anyone and the CC No. 102/2019 CBI Vs. Braham Parkash and ors 154/216 buyers i.e. PW10, PW12 to PW22 and PW24 to PW28 who had been sold these plots appears to have directly come in possession of the plots in question, in a clandestine manner. The allotment being in the names of fake, fictitious, non existing persons no actual possession was ever handed over to them and it was the buyers who had got the possession through the co-accused persons. The relevant portion of the cross-examination of PW47 in this regard read as under:-
"Que:Whether during the course of investigation, you were able to find out as to who had handed over the actual physical possession of the plots in question to the accused persons as alleged by you?
Ans:During the course of investigation, I was not able to find out any record regarding handing over of actual physical possession of the plots in question by the DDA to the accused persons.
Que:As you have said that by fraudulent means, the accused persons came into possession of the plots in question. On what basis you have said that?
Ans:It had come to light during investigation that the accused persons got allotted these plots in the name of fictitious persons by use of fake and fictitious documents and these plots were then further sold by the accused persons showing the fictitious persons as sellers. Therefore, on this basis, I reached the conclusion that by fraudulent means, the accused persons came into possession of the plots in question.
Que:Whether during the course of investigation, have you made any attempt to find out as to how the accused persons came into alleged possession of plots in question?
Ans:During the course of investigation, I made attempts to find out as to how the accused persons came into alleged possession of plots in question, but I could not find out any evidence regarding handing over of actual physical possession of the plots in question to the accused persons by the DDA.
.................Question: Whether during the investigation you were able to find out the name or designation of the officer who was required to hand over the physical possession of the plots in question to the allottees?
Answer: I was not able to find out as to who was the authorized officer required to hand over the physical possession of the plots in question to the allottees.
During the investigation, I was not able to find out as to who had handed over the physical possession of the plots in question CC No. 102/2019 CBI Vs. Braham Parkash and ors 155/216 to the allottees."
14.2 How accused no. 1 managed the allotments, how the signatures of fictitious/non existing persons were obtained in the allotment register were obtained by accused no. 1, has been discussed above in detail. Furthermore, PW1 during his cross examination by Ld. Defence counsel, he deposed as under:-
"After allotment, the senior officers of the Rank of Assistant Director and above used to decide as to whom the possession of the alternate plot was to be handed over and when the same was to be handed over".
14.3 Similarly, PW37 had deposed that the allotment registers remained in the possession of accused no. 1 and no date of allotment or of possession was mentioned in the said registers. Being in possession of the allotment registers and the fact that no date of allotment of possession was mentioned in the allotment registers, gave accused no. 1 ample opportunity, occasion to manipulate the allotment as well as possession. The relevant portion of the deposition of PW37 in this regard read as under:-
"The allotment register Ex. PW46/A5 and Ex. PW46/A4 colly. were in the possession of accused Brahm Prakash at the time of relocation. We never used to mention the date of allotment or of possession in the abovesaid allotment registers."
14.4 It has also emerged from the testimony of PW37 that allotment of alternate plot to the JJ dweller was done at the site itself and after demolition of their jhuggis, their belongings were also shifted simultaneously. So not only the allotment but the demolition of the jhuggis of the JJ dwellers, shifting of their articles to the alternate/allotted plots was all being done simultaneously. With so much going around it became easier for accused no. 1 to not only make the questioned entires in the CC No. 102/2019 CBI Vs. Braham Parkash and ors 156/216 allotment register but also to manage the possession of the allotted plots as regards the non existing/fictitious allottees. The relevant portion of cross-examination of PW37 in this regard read as under:-
It is correct that the allotment of alternate plot to the JJ Dweller was done at the site itself and their belongings were shifted by the DDA on the official transport from the site to the alternate allotted plot...........
It is correct that as per said note, all the jhuggis in Alaknanda Jhuggi Camp were removed/demolished by 12.12.2002. It is further correct that the jhuggis dwellers whose jhuggis were demolished were simultaneously shifted to the alternative plots of Madanpur Khadar which were allotted in their favour."
14.5 In addition to the demand letters the other documents as seized from Kamal Singh (PW10), Raghunandan Kumar (PW12), Ashok Kumar (PW13), Manohar Lal (PW14), Ram Sagar (PW15), Vidyawati (PW16), Chhotey Lal (PW17), Abrar Ahmed (PW18), Manmohan (PW19), Prem Sagar (PW20), Ram Dass (PW21), Bhagwan Sahay Aggarwal (PW22), Babita (PW24), Rajender Kumar (PW25), Narayani (PW26), Mamta Devi (PW27), Pappu (PW28) and Rambir Singh (PW31) vide Ex.
PW10/A, Ex. PW12/A, Ex. PW13/A, Ex. PW14/A, Ex. PW14/C, Ex. PW15/A, Ex. PW17/A, Ex. PW18/A, Ex. PW19/A, Ex. PW20/A, Ex. PW21/A, Ex. PW22/A, Ex. PW26/B, Ex. PW27/B, Ex. PW28/A and Ex. PW47/A1 include the sale documents i.e. agreement to sell, GPA, possession letter, receipt, Will etc. vide which the allotted plots were sold to them, their relatives/family members. It is the prosecution case that in all these sale transactions either accused Rajwant Singh, after having bought the plots from the non existing/fictitious allottees and which transactions are sham & bogus as the allottees/entites of the CC No. 102/2019 CBI Vs. Braham Parkash and ors 157/216 questioned plots never existed in reality, is the seller or the witness of/to the sale transactions in favour of PW10, PW12 to PW22 and PW24 to PW28.
14.6 According to the prosecution Rajwant Singh, after having purchased the plots from the allottees, had sold the allotted plots to/the family members of PW10, PW12, PW13, PW14, PW18, PW19, PW20, PW28. Whereas to/family members of PW15, PW17, PW21, PW22, PW26, PW27 the allotted plots have been shown to have been sold by the non existing/fictitious allottess and Rajwant Singh is a witness to the said sale transactions.
14.7 Undoubtedly CBI could not bring any positive material on record to substantiate its case/allegations against accused Rajwant Singh. The purchasers, those who were found in possession of the allotted plots i.e. PW10, PW12 to PW22 and PW24 to PW28, did not support the prosecution story that it was accused Rajwant Singh who had sold the allotted plots to them or was instrumental in the sale as a witness. They failed to identify him as the seller or as a witness in the sale transactions. This is despite the fact that his photographs appear in the sale documents wherein he is the seller. They claimed that they do not know any Rajwant and categorically denied that it was accused Rajwant who had sold the plots to them or facilitated the same as a broker/witness. Why they turned hostile is understandable. They did so, so as to avoid facing any repercussions which would follow upon admission by them that they had indeed purchased the allotted plots from accused Rajwant Singh as a seller or as a CC No. 102/2019 CBI Vs. Braham Parkash and ors 158/216 middleman/witness. Nonetheless their turning hostile sounded death knell for the prosecution case qua accused Rajwant Singh more so when even the FSL result Ex. PW47/A-10 as was proved by PW47 and PW49 failed to connect accused Rajwant Singh with the said documents.
14.8 PW49 Sh. A.D. Shah, Scientific Officer who had examined the sale documents as were seized vide seizure memos Ex. PW10/A, Ex. PW12/A, Ex. PW13/A, Ex. PW14/A, Ex. PW14/C, Ex. PW15/A, Ex. PW17/A, Ex. PW18/A, Ex. PW19/A, Ex. PW20/A, Ex. PW21/A, Ex. PW22/A, Ex. PW26/B, Ex. PW27/B, Ex. PW28/A and Ex. PW47/A1 which contained questioned entries marked Q1 to Q558 and Q589 to Q873, Q854A to Q873A, Q874 to Q957 (except Q660 and Q905) proved that the questioned entries upon examination and comparison with the specimen writing/signatures and specimen fingerprint impressions S-1 to S-85 and SF.1 to SF.33 did not match i.e. same could not be connected with any of the accused persons much least accused Rajwant Singh. Hence, the prosecution could not connect accused Rajwant Singh with the above seized documents.
14.9 Nonetheless it will be worthwhile to point out that during the recording of evidence, before the Ld. Predecessor of this court, PW31 Sh. Rambir Singh had informed the court that accused Rajwant Singh had tried to influence him/his testimony. The relevant portion of the testimony of PW31 in this regard read as under:-
"At this stage, witness says that during lunch time, accused Rajwant Singh has taken his wife to a corner of the court and CC No. 102/2019 CBI Vs. Braham Parkash and ors 159/216 has asked her to depose in the court that I have purchased the plot from his brother."
14.10 However, let that be the case in the absence of any concrete evidence against accused Rajwant Singh he deserves benefit of doubt. Furthermore, as already discussed above, all the allottees of the questioned plots/entries were non existing persons which fact stood further fortified from the following deposition of PW31:-
"I working as helper in a small factory at Faridabad. Before shifting to Madanpur Khadar, JJ Colony, I used to live at Alaknanda Camp for 8-10 years. I was allotted a plot of 12.5 meters at Madanpur Khadar in place of my jhuggi at Alaknanda Camp. I know the people residing in my vicinity at Alaknanda Camp.
On being shown the DDA files and photographs pasted on 25 cases of Alaknanda Camp (D5) already Ex. PW22/F which have been allotted plots at Madanpur Khadar, the witness states that he has never seen the persons whose photographs are pasted on 25 files of DDA in his vicinity at Alaknanda Camp neither any one of them was residing at Alaknanda Camp.......... On being shown D13 Ex. PW28/B-colly, D15 Ex. PW26/A, D17 Ex. PW27/A, D19 Ex. PW22/B & Ex. PW22/C, D21 Ex. PW12/B-colly, D23 Ex. PW22/D and Ex. PW22/E, D25 Ex. PW20/B-colly, D27 Ex. PW19/B-colly, D29, D31 Ex. PW18/B- colly, D33 Ex. PW15/B-colly, D35 Ex. PW14/B-colly, D37 Ex. PW14/D-colly, D39 Ex. PW17/B-colly, D41 Ex. PW13/B-colly and D43 Ex. PW10/B-colly, the witness states that persons whose photographs are pasted on the above mentioned files did not reside at Alaknanda Camp and he has never seen them at Alaknanda Camp. I have never seen accused Rajwant Singh in Alaknanda Camp and he has never resided in Alaknanda Camp."
14.11 It is the prosecution case that accused Ravinder Singh Sandhu had helped in arranging the photographs of the fictitious persons as were used in the above sale documents as well as on the I cards and in the documents submitted with DDA after the issuance of demand letter i.e. affidavit, undertaking, photograph and specimen signatures. These photographs were CC No. 102/2019 CBI Vs. Braham Parkash and ors 160/216 affixed on the above documents as the photographs of the allottees/sellers who, as discussed above, were fictitious/non existing persons. The backside of the photographs in the DDA files seized vide seizure memo Ex. PW46/A-2 contain the names of the allottees, however, these names were written on the photographs by accused Ravinder Singh Sandhu, as stands proved from Ex. PW40/F. The questioned entries of the photographs are Q14, Q33, Q46, Q60, Q74, Q94, Q108, Q115, Q128, Q141, Q155, Q169, Q184, Q205, Q212, Q227, Q249, Q274, Q289, Q310 and Q337. During investigation the specimen handwriting of accused Ravinder Singh Sandhu was obtained i.e. S53 to S62 and the FSL examination Ex. PW40/F returned a positive finding as was proved by PW40 Sh. Jeet Singh. The relevant portion of Ex. PW40/F is reproduced hereunder in this regard:-
II. The Hand Writings evidence points to the writer of the specimen English writings marked as S-53 to S-62 attributed to Ravinder Singh being the person responsible for writing the questioned English writings marked as Q-14, Q-33, Q-46, Q- 60, Q-74, Q-94, Q-108, Q-115, Q-128, Q-141, Q-155, Q- 169, Q-184, Q-205, Q-212, Q-227, Q-249, Q-274, Q-289, Q-310 and Q-337 due to the following reasons:-
The questioned writings is written freely showing smooth line quality and natural variation. Qualities of imitation are not present in them. The specimen English writings are also written freely showing smooth line quality and natural variations. Both the questioned writings and specimen writings agree with each other in the general writing characteristics such as movement, slant, spacing, alignment, relative size, proportion of letters. The skill and line quality of the questioned writings is also found consistent with these qualities of the specimen writings.
Both questioned and the specimen English writings also agree with each other in individual writing characteristics without any material divergence. Some of the points of similarity are detailed below:-
xxvi) Similarity is observed in the excecution of capital letter 'J' with the nature and formation of staff, initial stroke formation of horizontal stroke, formation of the angularity at the top, CC No. 102/2019 CBI Vs. Braham Parkash and ors 161/216 formation of the staff, formation of the loop at the base and direction and finish of the terminating stroke as observed in the specimen English writings is similarly observed in the questioned English writing within the range and extent of their natural variations xxvii) Similarity has been observed in the execution of small letter 'a' with the nature and formation of the initial stroke, formation of the oval and direction and finish of the terminating stroke and connection with the following letter smail 'i' as observed in the word 'Jaipal' as observed in the specimen English writings is similarly observed in the questioned English writing within the range and extent of their natural variations.
xxviii) Similarity has been observed in the combination of 'jai' between the two sets of writings.
xxix) Similarity has been observed in the execution of combination of 'al' in the word Jaipal between both sets of writings xxx) Similarity has been observed in the execution of capital letter 'B' with the nature and formation of the initial stroke, formation of the staff, stroke originating from the foot of the staff in the left direction, formation of the middle body and direction and finish of the terminating stroke as observed in the specimen English writings is similarly observed in the questioned English writing within the range and extent of their natural variations.
xxxi) Manner of execution of capital letter 'R' with the nature and formation of the initial stroke, curve formation at the top, formation of the middle body and direction and finish of the terminating stroke as observed in the specimen English writings is similarly observed in the questioned English writing within the range and extent of their natural variations. xxxii) Manner of execution of capital letter 'C' with the nature and formation of the initial stroke, formation of the middle body and connection with the small letter 'h' in the word 'Chanderpal' as observed in the specimen English writings is similarly observed in the questioned English writing within the range and extent of their natural variations.
xxxiii) Manner of execution of capital letter 'D' with the nature and formation of the initial stroke, formation of the staff, retracing at the base, formation of right body and direction of finish of the terminating stroke as observed in the specimen English writings is similarly observed in the questioned English writing within the range and extent of their natural variations. xxxiv) Manner of execution of capital letter 'K' with the nature and formation of the initial stroke, formation of the staff, formation of the buckle, formation of a curve and connection with the following small letter '' as observed in the word 'Kishore' is similarly observed in the same word in the questioned English writing within the range and extent of their natural variations xxxv) Manner of execution of capital letter 'P' with the nature CC No. 102/2019 CBI Vs. Braham Parkash and ors 162/216 and formation of the initial stroke, formation of the staff, formation of the stroke originating from the foot of the staff in left direction, formation of upper body and direction and finish of the terminating stroke as observed in the specimen English writings is similarly observed in the questioned English writing within the range and extent of their natural variations. xxxvi) Manner of execution of capital letter 'M' with the nature and formation of the initial stroke, formation of the initial staff, formation of the middle body as a bridge and direction and finish of the terminating stroke and connection with the following letter small 'a' as observed in the specimen English writing in the word 'Manoj' is similarly observed in the same word in the questioned English writing within the range and extent of their natural variations.
xxxvii) Similar manner of execution of capital letter 'J' with the nature and formation of the initial stroke start from the left direction of the angularity or retracing at the top in the right direction, formation of the staff, formation of the curve or loop formation at the base as observed in the word 'Manoj' in the specimen English writing is similarly observed in the questioned English writing.
xxxviii) Manner of execution of rest of the capital letters such as 'A','H', 'S', 'V', 'N', etc. between the two sets of signatures. xxxix) Similar manner of execution of small letters such as 'a', with the nature and formation of the initial stroke formation of oval and direction and finish of the terminating stroke as observed in the specimen English writings is similarly observed in the questioned English writing within the range and extent of their natural variations.
xl) Manner of execution of small letter 'p' with the nature and formation of the initial stroke, formation of the right body and direction and finish of the terminating stroke and connection with the following letter small 'v' as observed in the word 'Devi' in the specimen English writing is similarly observed in the same word in the questioned English writing.
xli) Similarity has been observed in the execution of small letter 'i' with the nature and formation of I Dotting between the two sets of writings.
xlii) Similarity has been observed in the execution of small letter 'I' with the nature and formation of the initial stroke, connection with the preceeding letter small 'a', formation of elongated loop at the top and direction and finish of the terminating stoke as observed in the word 'Pal' in the specimen English writing is similarly observed in the same word in the questioned English writing within the range and extent of their natural variation. xliii) Similarity has been observed in the execution of small letter 'g' with the nature and formation of the initial stroke connection with the preceeding letter small 'e' formation of the loop in the left direction, coming in anti clockwise direction, formation of the loop at the top, formation of the middle body and formation of the elongated loop at the base and direction CC No. 102/2019 CBI Vs. Braham Parkash and ors 163/216 and finish of the terminating stroke and connection with the following letter small 'u' as observed in the word 'Begum' in the specimen English writing is similarly observed in the same word in the questioned English writing within the range and extent of their natural variation.
xliv) Similarity has been observed in the execution of small letter 'r' with the nature and formation of the initial stroke, formation of the left body, formation of loop at the left direction, formation of the middle body and direction and finish of the terminating stroke and connection with the following letter small 'a' as observed in word 'Pradhan' in the specimen English writing is similarly observed in the same word in the questioned English writing within the range and extent of their natural variation.
xlv) Similarity has been observed in the execution of small letters such as 'm.m.p.d.u.l.k.b.w.c.a.l.u.g.e.f' etc. between the two sets of writing.
xlvi) Similarity has been observed in the execution of words and combination such as 'Jaspal Bharpai, 'Jugal Kishore, 'Ganga, 'Ramesh Chand, 'Jagdish, 'Pappi Devi', Sunita Devi, 'Chandrapal, 'Razia Begum, 'Badal Ram Bahadur, 'Manoj Kumar, 'Om Prakash, 'Ram Lal and Chhati Devi between the two sets of writings.
I have not observed any fundamental difference between both sets of questioned and the specimen English writings and signatures. Cummulative consideration of the aforesaid points of similarity observed between questioned and specimen English writings in both general and individuals characteristics which are beyond the range of accidental co-incidence, constitute the basis of the aforesaid opinion."
14.12 As already discussed above, the testimony of PW40 remained unchallenged, uncontradicted on material particulars. It was not even once suggested to PW40 that his report is incorrect or that he was deposing falsely as regards his report. Once a witness makes a positive statement during his examination in chief or for that matter during cross-examination by Ld. PP for prosecution/CBI, it is the defence which has to dislodge, discredit the same during the cross-examination or by leading evidence to the contrary which can create doubts on the veracity of the witness, his deposition. In absence thereof, there is no reason to doubt the testimony of the witness.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 164/216 14.13 At this stage, it will be worthwhile to point out just like accused no. 1, when the FSL result was put to accused Ravinder Singh Sandhu, during examination u/s 313 Cr.P.C, he merely stated "It is matter of record". He did not even once state, claim that the same is false or incorrect. The relevant portion of his statement u/s 313 Cr.p.C. in this regard read as under:-
"Ques 40.06: It is in evidence against you and your co-accused as per deposition of PW-40 that handwriting examination report No. CFSL-2010/A-194 dated 28.02.2011 Ex. PW40/F was given by him and sent to Superintendent of Police, CBI, ACB, New Delhi vide forwarding letter dated 07.3.2011 Ex. PW40/G. What do you have to say?
Ans: It is matter of record.
Ques 40.07: It is in evidence against you and your co-accused as per deposition of PW-40 that vide forwarding letter dated
15.3.2010 Ex. PW40/H (colly), certain documents annexed with said letter as Annexure A, B and C were sent to Director CFSL, New, Delhi by CBI for examination of documents and opinion and all the said questioned documents Q1 to Q957 and specimen documents S1 to S85 were examined by PW-40 in RC No. 55(A)/08/DLI and in that regard he gave his report Ex. PW40/F. What do you have to say?
Ans: It is matter of record."
14.14 In addition to the above, it is also a matter of record that accused Ravinder Singh Sandhu's confessional statement was recorded by Insp. D.K. Thakur in RC no. 0034(A)/2007 and the same is on record in the present case as part of Ex. PW47/A-
6. Though Ld. Defence counsel vehemently argued that the said statement cannot be read against the accused as it was not recorded in the present case more so when it was not a voluntary statement and that it is the weakest piece of evidence, however, I find no merits in his arguments.
14.15 No doubt, the confessional statement of accused was CC No. 102/2019 CBI Vs. Braham Parkash and ors 165/216 not recorded in the present matter and the same was recorded in RC no. 0034(A)/2007, however, during the trial of the present matter same was duly exhibited as part of Ex. PW47/A-6 by PW47 Insp Girish Bhardwaj. Once the document is/was duly exhibited I find no reasons to not to consider the said document or to reject it outrightly.
14.16 The said statement was recorded by the then Ld. Metropolitan Magistrate u/s 164 Cr.P.C. Section 164 (1) Cr.P.C. empowers a Metropolitan Magistrate or a Judicial Magistrate to record any confession or statement made to him in the course of an investigation. The proceedings as conducted before the Ld. Metropolitan Magistrate, part of Ex. PW47/A-6, makes it amply clear that the Ld. Metropolitan Magistrate had followed the prescribed procedure for recording the confession and only once the Ld. Metropolitan Magistrate was satisfied that the confession/statement was being made voluntarily that he went ahead to record the statement. Not only the Ld. Metropolitan Magistrate had informed the accused that he is not bound to make any such statement and that if he still makes any statement, the same shall be used against him but after recording the statement, the Ld. Metropolitan Magistrate had also issued a certificate that the statement was made voluntarily. Such a confessional statement is admissible and there is no bar, legal hurdle in accepting, believing the same. The relevant extract of the proceedings and statement are reproduced hereunder:-
"An application for recording the statement of accused namely Ravinder Singh Sandhu. The said application has been marked to me on 29-08-07 and same was fixed for today, as the accused was in JC and production Warrants were issued and in execution of Production Warrant the accused was produced CC No. 102/2019 CBI Vs. Braham Parkash and ors 166/216 before me at 2.30 PM today and at that time the IO was not present. I explained to the accused that he is not bound to make this confession and that if he does so it may be used as evidence against him. In reply to which he states that he is making his statemeat voluntarily without any pressure from the police as he has realized his mistake and he does not want to face more harassment during the trial. The accused was asked to wait till IO comes. IO appeared at 2.45 PM. IO identifed the accused. Let the statement of accused be recorded.
Let the statement be recorded.
At this stage IO has been directed to go outside the court IO has complied with the direction and accused was called inside the chamber for recording his statement.
Statement of Ravinder Singh Sandhu S/O Sh. Gurbaj Singh Sandhu, R/O 11, Hakikat nagar, Kingsway Camp, Delhi, aged about 39 years.
WO I have studied up to 12 class. In the year 1998 I came to Delhi in search, of work and till 2003 I did the work of Tour and Travels ie. the work of ticketing and Pass port. I met Sh. Ashok Malhotra through one of my friend Sh. Gurucharan Singh Babber who is Editor of Quami Patrika. As I was not doing well in my business, I met Sh. Ashok Malhotra at his residence at 1310, Mukarjee Nagar, Delhi and on my request he appointed me Cashier in his canteen at Vidhan Sabha in the year 2004. For the entire day I used to handle the cash of the canteen and in the evening I used to go to his residence to give the accounts. Thereafter when the Manager of said canteen left the job, Sh. Ashok Malhotra appointed me as manager there. I used to visit the residence of Mr. Malhotra almost daily to give the accounts on day to day basis due to which I came close to him and I started doing his small household work such as bringing the grocery items, etc from the market. Various people used to visit his residence including some MCD official such as Sh. S.N.S Sidhu, Sumer Chand Garg Atul Vashisht, Vijayan, Philip Topo. Sh. Ashok Malhotrai used to deal in allotment of plots of Re settlement scheme (shifting of slums). During this period, I noticed that above mentioned officials used to bring the plans of the area where plots are to be distributed to Mr. Malhotra and Mr. Malhotra used to mark the plots in which he is interested, so that the official may get the allotment of those plots in his favour by manipulating the draw. He used to select the corner and main road plots and MCD official used to mark those plots allotment as left cases in lucky draw. Sh. S.C. Garg, Atul vashisht and S.N.S. Sidhu used to visit Mr. Malhotra residence very oftenly, though Mr. Topo used to come there very rarely. After the lucky draw they used to bring decuments of allotment such as Identification slip, cash receipt of Rs.7,000/-, draw slip and receipt of plot to Sh. Ashok Malhotra's residence and alongwith that they used to bring copy of specimen ration card and Identify card of jhuggi dwellers to enable the preparation of CC No. 102/2019 CBI Vs. Braham Parkash and ors 167/216 forged documents for allotment. We used to obtain thumb impressions of various persons ie, servants and workers of Ashok Malhotra on the identification slip of plots. Thereafter Ashok Malhotra used to hand over the draw slip along with copy of ration card to me to give it to Sh. Lalmani and Darshan Lal who used to do the work of preparation of ration card and Delhi Administration I Card and after completing their work they used to hand over the ration card and I card and one extra photo of the concerned persons to me. For their work, Sh. Ashok Malhotra used to pay they Rs.1,000/- per set of documents. Sh. Ashok Malhotra used to call one Ram Chander Arora @ Masterjee to his residence Mukerjee Nagar to give him the photocopy of the draw, list and spare photo, behind that name of jhuggi dwellers and his address was mentioned which I used to do so that he may prepare the documents for the sale of those plots such as Sale Deed, receipt, Will etc. Masterjee used to get Rs.300/- per file and he used to get file prepared and handed over to me or Sh. Ashok Malhtora directly. Thereafter I used to prepare different sets of documents for all the plots original as well as photocopy. Thereafter, JE & AE of the concerned area were called for taking the possession of the plots and papers and relevant entries are made in their register by taking thumb impressions of various frivolous persons and after all this process, Sh. Ashok Malhotra, used to sell those plots through various Property Dealers. In return, Sh. Ashok Malhotra used to give Rs.40,000/- per plot to official of MCD @ Rs. 10,000/- per official, in addition of Rs.7,000/- with respect to the cash receipt which is deposited with the MCD.
In the year 2005-06 Sh. Ashok Malhotra also deal in the the plots of DDA in the same manner and through some persons namely one Suraj Bhan(AD), Sh. Bhardwaj (UDC) and Sh. Negi Clark) who used to work with him. The above mentioned official used to visit Malhotra's residence to provide documents relating to allotment procedure and on the basis of those documents Sh.
Ashok Malhotra used to get the file prepared containing covering letter, four photographs of applicant, his two affidavit, ration card/ I card photocopy and amount of Rs.5,000/-, Rs.7,000/-, Rs. 14,000 and Rs.20,000/- according to the size and location of the plots and after that Mr. Negi used to take those file to DDA office. All these file used to prepare by him and I used to take thumb impressions of the applicants. Sh Ashok Malhotra used to obtain signature and thumb impressions of his servants, driver, watchman, persons working in his canteen including Rakesh Kumar, Ram Niwas Doru, Surender Kumar Chanan, Uttam Chand @ Pappi, Mohan Lal Mone and he used to give them Rs.50-100/- as tip. I used to maintain all the account of re settlement plots on behalf of Ashok Malhotra and I used to obtain all the documents and I was getting salary of Rs.25,000/- per months. Mr. Malhotra used to obtain the signatrere by those persons on he papers and I used to prepare the list of those allotment manually and thereafter I got it typed CC No. 102/2019 CBI Vs. Braham Parkash and ors 168/216 through M/s Sanjay Communication, Ist Floor, Mukerjee Nagar Tower, Commercial Complex, Dr. Mukerjee Nagar, Delhi on computer. We used to maintain all the records of plots dealt with by Sh. Ashok Malhotra and details of which are as follows:
1. 250 plots at Molreband Phase-II
2. 100 plots at Narela, Pocket-A-10 Sec. A-7
3. 35 plots at Holambi Kala, Phase-I and 52 in Phase-II
4. 20-25 plots at Madanpur Khadar, Phase-III
5. 40 plots at Bawana, Block F under DDA scheme and 9 plots in H Block.
6. 46 plots at Savadah Gavera in black No. F-1 and 72 plots in H Block
7. 100 plots at Rohini Sector 24,25 & 26.
My statement is correct:
Certificate I have explained to Ravinder Singh Sandhu that he is not bound to make a confession and that he does so, any confession he may make they be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct and it contains a full and true account of the statement made by him."
14.17 Though Ld. Counsel for the accused persons relied upon Indra Dalal (supra) to argue that the said confessional statement cannot be looked into, however, I find no merits in his arguments. The said confessional statement is being used against accused Ravinder Singh Sandhu, the maker of the statement itself primarily and also to throw light on the conspiracy unlike the facts in Indra Dalal (supra) case. As regards the contention that the confessional statement was made in another matter and therefore cannot be used in the present matter suffice would be to say that there is no such legal bar, impediment. It has been held in State of Gujarat vs Mohammed Atik and others AIR 1998 SUPREME COURT 1686 as under:-
"We have, therefore, absolutely no doubt that a confession, if usable under Section 15 of the TADAA, would not become unusable merely because the case is different or the crime is different. If the confession covers that different crime in which CC No. 102/2019 CBI Vs. Braham Parkash and ors 169/216 that crime is under trial and it would then become admissible in the case.
In State of Rajasthan vs. Bhup Singh - 1993 (10) SCC 675 a similar objection raised by the defence was considered in the context of admissibility of a confessional statement under Section 27 of the Evidence Act. In that case, information was elicited by the police from the accused during investigation in connection with a particular offence and weapon of offence was recovered in consequence thereto. That information became relevant in a subsequent case, but the accused contended that the said information is not admissible in evidence in the subsequent case. This High Court over-ruled the objection on the ground that there is no such prohibition in Section 27 of the Evidence Act. It was observed that "it is immaterial whether the information was supplied in connection with the same crime or a different crime."
14.18 The following observations made in Mohd. Khalid vs State Of West Bengal AIRONLINE 2002 SC 266 with regard to confessional statement may also be noted in this regard:-
"Where trustworthy evidence establishing all links of circumstantial evidence is available the confession of a co- accused as to conspiracy even without corroborative evidence can be taken into consideration. [See Baburao Bajirao Patil v. State of Maharashtra, [1971] 3 SCC 432]. It can in some cases be inferred from the acts and conduct of parties. [See Shivanarayan Laxminarayan Joshi and Ors. v. State of Maharashtra and Ors,, AIR (1980) SC 439................... A confessional statement is not admissible unless it is made to the Magistrate under Section 25 of the Evidence Act. The requirement of Section 30 of the Evidence Act is that before it is made to operate against the co- accused the confession should be strictly established. In other words, what must be before the Court should be a confession proper and not a mere circumstance or an information which could be an incriminating one. Secondly, it being the confession of the maker, it is not to be treated as evidence within the meaning of Section 3 of the Evidence Act against the non-maker co-accused and lastly, its use depends on finding other evidence so as to connect the co-accused with crime and that too as a corroborative piece. It is only when the other evidence tendered against the co-accused points to his guilt then the confession duly proved could be used against such co-accused if it appears to effect him as lending support or assurance to such other evidence. To attract the provisions of Section 30, it should for all purposes be a confession, that is a statement containing an admission of guilt and not merely a statement raising the CC No. 102/2019 CBI Vs. Braham Parkash and ors 170/216 inference with regard to such a guilt. The evidence of co- accused cannot be considered under Section 30 of the Evidence Act, where he was not tried jointly with the accused and where he did not make a statement incriminating himself along with the accused. As noted above, the confession of co-accused does not come within the definition of evidence contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross- examination. It is only when a persons admits guilty to the fullest extent, and exposes himself to the pains and penalties provided for his guilt, there is a guarantee for his truth. Legislature provides that his statement may be considered against his fellow accused charged with the same crime. The test is to see whether it is sufficient by itself to justify the conviction of the person making it of the offence for which he is being jointly tried with the other person or persons against whom it is tendered. The proper way to approach a case of this kind is, first to marshal the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence. This position has been clearly explained by this Court Kashmira Singh v. The State of Madhya Pradesh, AIR (1952) SC 159. The exact Scope of Section 30 was discussed by the Privy Council in the case of Bhubani v. The King, AIR (1949) PC 257. The relevant extract from the said decision which has become locus classicus reads as follows:
"Sec. 30 applies to confessions, and not to statements which do not admit the guilt of the confessing party........But a confession of a co-accused is obviously evidence of a very weak type.....It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Sec. 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, make it evidence on which the Court may act but the section does not say that the confession is to amount to proof. Heady there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. The confession of the co-accused and be used only in support of other evidence and cannot be made the foundation of a conviction". Kashmira Singh's principles were noted with approval by a Constitution Bench of these Court Hart Charan Kurmi and Jodia Hajam v. State of Bihar, [1964] 6 SCR 623. It was noted that the basis on which Section 30 operates . is that if CC No. 102/2019 CBI Vs. Braham Parkash and ors 171/216 a person makes a confession implicating himself that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is to likely that the maker would implicate himself untruly. So Section 30 provides that such a confession may be taken into consideration even against the co- accused who is being tried along with the maker of the confession. It is significant however that like other evidence which is produced before the Court it is not obligatory on the Court to take the confession into account. When evidence as defined by the Evidence Act is produced before the Court it is the duty of the Court to consider that evidence. What weight should be attached to such evidence is a matter in the discretion of the Court. But the Court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can however be adopted by the Court in dealing with a confession because Section 30 merely enables the Court to take the confession into account. Where, however, the Court takes it into confidence, it cannot be faulted. The principle is that the Court cannot start with confession of a co- accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidences, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about the reach on some other evidence. That is the true effect of the provision contained in Section 30. We may note that great stress was laid down on the so-called retraction of the makers of the confession. Apart from the fact that the same was made after about two years of the confession. PWs 81 and 82 have stated in Court as to the procedures followed by them, while recording the confession. The evidence clearly establishes that the confessions were true and voluntary. That was not the result of any tutoring, compulsion or pressurization. As was observed by this Court in Shankaria v. State of Rajasthan, (1978) Crl. LJ. 1251, the Court is to apply double test for deciding the acceptability of a confession i.e. (i) whether the confession was perfectly voluntary and (ii) if so, whether it is true and trustworthy. Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise, such as mentioned in Section 24 of the Evidence Act, it must be excluded and rejected brevi manu. If the first test is satisfied, the Court must before acting upon the confession reach the finding that what is stated therein is true and reliable. The Judicial Magistrate PWs. 81 and 82 have followed the requisite procedure. It is relevant to further note that complaint was lodged before the Magistrate before his recording of the confessional statement of accused Md. Gulzar. The complaint was just filed in Court and it was not moved. The name of the CC No. 102/2019 CBI Vs. Braham Parkash and ors 172/216 lawyer filing the complaint could not be ascertained either. This fact has been noted by the Designated Court.
In view of what we have said about the confessional statement it is not necessary to go into the question as to whether the statement recorded under Section 164 of the Code as to be given greater credence even if the confessional statement has not been recorded under Section 15 of the TADA Act. However, we find substance in the stand of learned counsel for accused-appellants that Section 10 of the Evidence Act which is an exception to the general rule while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. In State of Gujarat v. Mohd. Atik and Ors., [1998] 4 SCC 351, it was held that principle is no longer res Integra that any statement made by an accused after his arrest, whether as a confession or otherwise, cannot fall within the ambit of Section 10 of the Evidence Act. Once the common intention ceased to exist any statement made by a former conspirator thereafter cannot be regarded as one made in reference to their common intention. In other words, the post arrest statement made to a police officer, whether it is a confession or otherwise touching his involvement in the conspiracy, would not fall within the ambit of Section 10 of the Evidence Act."
14.19 No doubt that the then Ld. Metropolitan Magistrate who had recorded the said statement was not examined by the prosecution but there was no requirement to do so. It has been held in Madi Ganga vs State Of Orissa AIR 1981 SC 1165 as under:-
"5...................Section 80 of the Evidence Act makes the examination of the Magistrate unnecessary. It authorises the Court to presume that the document is genuine, that any statements as to the circumstances under which it was taken are true and that such confession was truly taken in accordance with law................The Magistrate has appended a certificate that he was satisfied that the confession was voluntary. No circumstance has been brought out in the evidence justifying the calling of the Magistrate as a witness. We do not think that the circumstances of the case justify any comment on the alleged failure of the prosecution to examine the Magistrate as a witness."
14.20 It was further held as under:-
CC No. 102/2019 CBI Vs. Braham Parkash and ors 173/216 "6. The final submission of the learned Counsel was that even if the confession to the Magistrate was accepted as voluntary it has not been sufficiently corroborated to justify the conviction of the accused. It is now well settled that in order to sustain a conviction on the basis of a confessional statement it is sufficient that the general trend of the confession is substantiated by some evidence which would tally with the contents of the confession. General corroboration is sufficient -
vide Subramanian Goundan v. State of Madras (1)..........."
14.21 Reliance may also be placed upon Devi Singh Vs. State of Rajasthan 2005 SCC 10 453 in this regard. As discussed above, the statement part of Ex. PW47/A-6 was got recorded by Insp. D.K. Thakur (PW43) and during his cross-examination not even a single suggestion was given to him that statement Ex. PW47/A-6 was not made voluntarily by accused Ravinder Singh Sandhu or the the same was made under inducement, threat, promise etc. so as to be hit by Section 24 of the Indian Evidence Act 1872. Though such a suggestion, even if given, would not have made any difference in view of the proceedings conducted by the Ld. Metropolitan Magistrate and the certificate given by him at the end of the statement/proceedings.
14.22 Though a suggestion was given to Insp. Girish Bhardwaj (PW47), who had seized the said statement during the investigation from Insp. P.K Srivastava (PW48), that he cannot say whether the statement was made voluntarily or not as he had not got recorded the same, however, the witness stated that the same was recorded by a Judicial officer and the procedure was followed. The relevant portion of his cross-examination in this regard read as under:-
CC No. 102/2019 CBI Vs. Braham Parkash and ors 174/216 Que: Since you have not got recorded the above said statement, therefore, you cannot say whether the statement was voluntarily given by Sh. R. S. Sandhu or not. What do you have to say? Ans: The statement was not got recorded by me, therefore, it is not in my personal knowledge that whether the said statement was voluntarily given by Sh. R. S. Sandhu or not (Vol. However the said statement was recorded by a judicial officer and the record shows that the due process has been followed in recording the said statement and therefore, it was taken to be true. Secondly, during investigation of the case when the concerned person was asked, he admitted to have given his statement U/s 164 Cr.P.C.).
14.23 It was also suggested to PW47 that the statement was not voluntarily made by accused Ravinder Singh Sandhu, which the witness had categorically denied, while stating "It is wrong to suggest that the alleged statement U/s 164 Cr.P.C. was not given voluntarily by Sh. R. S. Sandhu", however such a suggestion to him does not serve any purpose as admittedly he had not got recorded the statement and the same was got recorded by Insp. D.K. Thakur to whom no such suggestion was ever given.
14.24 It will be pertinent to highlight that though the statement was recorded in RC no. 34(A)/2007, however, at the time of recording of the statement the RC no. was inadvertently typed as RC 25/A/07. Similarly there is a typographical error in the handing over memo i.e. Ex. PW47/A-6 and inadvertently the RC no. has been mentioned as 0055(A)/2008 DLI. These typographical errors no way effect the substance of the statement.
Relevant portion of the statements of PW47 and PW48 are reproduced here under :-
PW47 (cross-examination) "Insp. P. K Srivastava told me during handing over of the above said statement vide Ex. PW47/A6-colly that the said statement CC No. 102/2019 CBI Vs. Braham Parkash and ors 175/216 was actually recorded in RC 34(A)/2007, but the case number was inadvertently typed as RC 25(A)/2007.....It is wrong to suggest that no statement U/s 164 Cr.P.C. of Sh. R. S. Sandhu was recorded in RC 34(A)/2007."
PW48 (examination in chief) In the month of November 2009, I was posted as Inspector, CBI, ACB, New Delhi. I was Holding Investigating officer of case RC 34(A)/2007 in which, statement U/s 164 Cr.P.C. of Sh. Ravinder Singh Sandhu was got recorded by its IO Sh. D. K. Thakur, the then Inspector on 31.08.2007 before the court of Sh. Naveen Arora, Ld MM, New Delhi. I had handed over the photocopy of the proceedings U/s 164 Cr.P.C. alongwith the statement of Ravinder Singh Sandhu recorded in the court to Inspector Girish Bhardwaj, IO of the present case.
14.25 Most importantly, when the said statement was put to accused Ravinder Singh Sandhu during his examination u/s 313 Cr.P.C. he simpliciter stated that it is matter of record. The relevant portion read as under:-
"Ques 47.11: It is in evidence against you and your co-accused as per deposition of PW-47 that vide receipt memo dated 25.11.2009 Ex. PW47/A6 (colly), documents mentioned therein were received by him from Inspector P.K. Srivastava. What do you have to say?
Ans: It is matter of record."
14.26 At this stage it will be worthwhile to highlight that the photographs appearing on the DDA files in the name of allottees as seized vide Ex. PW46/A-2 bearing the signatures of accused Ravinder Singh Sandhu and the photographs appearing on the I cards as well as the sale documents in favour of/in the name of family members of PW10, PW12 to 22 and PW24 to PW28 are the same, only the background has been changed. It will be interesting to note that the I cards bearing the same photographs were allegedly prepared in 1990 whereas the sale documents were executed in the year 2004, but the person in the CC No. 102/2019 CBI Vs. Braham Parkash and ors 176/216 photographs has not aged a bit despite a gap of 14 years. As discussed above only the backgrounds have been changed but the photo is exactly the same.
Search and seizures
15. As discussed above, according to the prosecution, several incriminating documents were recovered during the investigation of RC No. 25(A)/2007 & 34(A)/2007 and thereafter the preliminary enquiry, which ultimately led to registration of the present FIR, was registered. These searches were carried out at the premises of Mohan Lal (PW30) and Chander Jit Arora (PW41) and the original seizure memos Ex. PW43/A and Ex. PW41/A are lying in RC No. 25(A)/2007.
15.1 As per seizure memo Ex. PW41/A number of documents pertaining to different cases were recovered during the said raid/search and it was on account of recovery of documents mentioned at Sl. No. 352 that the preliminary enquiry of the present case was registered. The remaining documents as seized vide Ex. PW41/A pertained to different cases. The relevant portion of Ex. PW41/A and deposition of PW45 in this regard is reproduced hereunder:-
Ex. PW41/A "352 One bunch of loose sheets in the form of photocopy of demand letters for allotment of alternative plots, consumer cards, Delhi administration cards etc. pages 1 to 309"
PW45 (examination in chief) "A preliminary enquiry number PE DAI 2008 A 0002 was registered on 10.05.2008 after large number of documents were CC No. 102/2019 CBI Vs. Braham Parkash and ors 177/216 seized from certain premises in RC 25(A)/2007 and RC 34(A)/2007, both against Ashok Malhotra and others. To bring up the nature of violations/ irregularities etc in relation to various resettlement schemes of DDA and MCD, the aforesaid PE was registered and entrusted to me for enquiry. I conducted the aforesaid enquiry and it was found that bunch of papers relating to Alaknanda Camp, Resettlement Scheme containing details of around 25 plots in Madan Pur Khadar was found. The enquiry relating to these plots revealed that these plots were allocated on the basis of fake ration cards, Delhi Administration ID Cards and other official records."
15.2 The raid at the premises of Chanderjeet Arora was conducted by Inspector S.C. Bhalla and after the raid, search & seizure proceedings the seized documents vide Ex. PW41/A pertaining to the present case were handed over to Insp. Raj Singh (PW44). Infact Insp. Raj Singh, after getting the search proceedings conducted through Insp. S.C. Bhalla, informed the court through his application about the said fact on 16.08.2007 as well as about the recovery of the seized documents while requesting for retaining the same for the purpose of investigation. This is all a matter of record.
15.3 Vide receipt memo Ex. PW44/A dated 27.04.2009 the copy of the seizure memo Ex. PW41/A was handed over by Insp. Raj Singh to Insp. Hitender Adhlakha (PW46). The seized documents were handed over by Insp. Raj Singh to Insp. Girish Bhardwaj (PW47) vide Ex. PW44/B (colly) dated 12.11.2009.
15.4 The raid as per seizure memo Ex. PW41/A was conducted at the house of Chanderjeet Arora (PW41) on 01.08.2007. PW41 specifically stated that the documents as recovered vide Ex. PW41/A were kept at his premises by deceased Ashok Malhotra which also finds corroboration from CC No. 102/2019 CBI Vs. Braham Parkash and ors 178/216 the testimony of PW30 as well as his statement Ex. PW30/A, which has been discussed in the later part of the judgment. The relevant portion of the examination in chief of PW41 in this regard read as under:-
"On being shown photocopy of search cum seizure memo dated 01.08.2007, the witness has identified his signatures at points A thereon which he has affixed during the search conducted at his premises No. 1325, Mukherjee Nagar, Delhi. The said copy of the search-cum-seizure memo dated 01.08.2007 is now Ex.PW41/A [original in RC 25(A)/07 and CC No. 14/11 titled as CBI Vs. Kheman Singh Verma and Ors. (original seen and returned)]. The documents recovered during the above-said search were kept in my premises by accused Ashok Malhotra."
15.5 During the course of investigation in RC no. 25(A)/2007 statement of PW41 was also got recorded u/s 164 Cr.P.C. before the then Ld. Metropolitan Magistrate and the said statement is on record as Ex. PW41/B. The relevant portion of his statement is reproduced hereunder:-
"............Sh. Ashok Malhotra R/O 1310-1311, Mukerjee, Nagar, Delhi is my neighbour and is very influential person of the locality. He came to my house about one year back with his Driver Pappi at about 8 pm and requested me to keep 4-5 bags at my house as the same were containing his personal papers. He stated that his house is being renovated that is why he is keeping these documents at my residence. As he is an influential person I agreed to keep those bags at my house. I was not aware about the documents kept in it. I requested him to take the bags after completion of his renovation period and he assured me that he will take back his bags. Before 2-3 months, one person came to my house and put certain other documents in those bags but I do not know that person. I requested many times to Sh. Ashok Malhotra to take his bags back but he did not do so and on 01/02 August 2007, CBI Official came to my residence and recovered those documents from my house. I am in no manner related to those documents."
15.6 Though it was argued by Ld. Defence counsel that the official who had conducted the search at the house of Chanderjeet Arora namely Inspector S.C. Bhalla was not CC No. 102/2019 CBI Vs. Braham Parkash and ors 179/216 examined which is a missing link/lacuna in the prosecution case and which itself create doubts upon the prosecution story, however, I find no merits in his arguments. The fact that search was carried out at premises bearing no. 1325 stands duly proved from the testimony of PW41. Defence could not bring any material on record to create doubt upon the said fact. No doubt during his cross-examination PW41 was confronted with his previous statement made in RC no. 25(A)/2007, however, the witness while reiterating that the bags were kept at his house by Ashok Malhotra and that the same were recovered, seized by the CBI had categorically stated that the statement made by him in this court is correct. He further explained that the inconsistency in his previous statement was on account of his ill health which fact also stands corroborated from his statement Ex. PW41/B wherein he had categorically stated that he has been suffering from TB. The relevant portion of his cross-examination in this regard read as under:-
"Question: In your statement recorded in RC25/A/2007, CC no. 14/11, case titled as CBI v. Kheman Singh Verma and others you have stated in your examination in chief on 15.10.2015 that 'the 4-5 bags containing some documents were not brought to his house personally by accused Ashok Malhotra or even his driver Pappi', you also stated that 'under the pressure of the CBI officials he had named Pappi in his above statement' whereas in your examination in chief you have stated that the documents which were alleged to have been recovered from your residence were kept by Sh. Ashok Malhotra in your house. Which of the two statements is correct?.
Answer: The statement given by me in examination in chief in the present case is the correct statement. (VOL. I had found of the name of the person, who came to my place to deliver the bags, as it was being insisted upon by the CBI officials and therefore, I took about a week time to find out the name and thereafter told the name to CBI. Infact, Ashok Malhotra had come to my place to have the bags deliver and he was sitting in the car while his driver came with those bags to handed over to me).
I had not stated that 'the 4-5 bags containing some documents CC No. 102/2019 CBI Vs. Braham Parkash and ors 180/216 were not brought to his house personally by accused Ashok Malhotra or even his driver Pappi', I had also not stated that 'under the pressure of the CBI officials he had named Pappi in his above statement' during the course of recording of my examination in chief before this court on 15.10.2015. Question: In your statement recorded before this court in your examination in chief on 15.10.2015 you have stated that the statement which was made before Ld. MM under Section 164Cr.P.C was not made by you voluntarily rather you were tutored and pressurized by the CBI officials to give the said statement. Whereas, in your examination in chief dated 11.12.2018, you have stated that the said statement was voluntarily given by you before Ld. MM. Which of the two statements is correct?.
Answer: The statement made by me in this court in my examination in chief recorded on 11.12.2018 is correct. My statement which has been recorded in CC no. 14/11 on 15.10.2015 is wrongly recorded in the court. (VOL. I am not keeping good health for the last 7-8 years and my memory has also gone down so I cannot say whether it was recoded rightly or wrongly). I had signed the statement dated 15.10.2015 after understanding whatever I could understand. I had stated the truth whatever I knew at that time when my statement was recorded on 15.10.2015 and I am stating truth today also. I had signed the statement under Section 164 Cr.P.C Ex.41/B after going through and understanding the same. VOL. At that time in the year 2007, I was not afflicted by any ailment and was well. I do not remember whether the Ld. MM had read over my statement Ex.PW41/B to me or not after recording it. Question: Can you tell after going through your statement recorded in CC 14/11 on 15.10.2015, which part of the said statement is correctly recorded and which part is incorrectly recorded?.
Answer: I have gone through my abovesaid statement and the facts regarding making of involuntarily statement to the Ld. MM under Section 164 Cr.P.C and regarding pressure being applied by the CBI official and tutoring me for making said statement was incorrectly recorded but not wrongly recorded."
15.7 No doubt PW41 admitted that he was not aware about the nature of documents which were recovered from his house, nor the same were shown to him and his cross- examination in this regard read as under:-
"The CBI officials did not show me the papers allegedly seized from my house after its seizure, during the recording of my statement under Section 161 Cr.P.C by CBI officials or otherwise. The aforesaid papers were not shown to me even CC No. 102/2019 CBI Vs. Braham Parkash and ors 181/216 during the recording of my statement before the court on 11.12.2018.
At this stage, witness has been shown Ex.PW41/A by Ld. Defence Counsel and has been asked whether he had put his signatures on each page of the said documents after personally seen the document mentioned in the Ex.PW41/A before signing the same. To which the witness has replied that he has not gone through the documents mentioned in the said exhibit before signing the same and the same signed by him at the instance of CBI officials as they too were signing the same. It is correct that I was not aware about the nature of documents alleged to have been recovered from my house by CBI as the same were not shown to me by CBI after recovery. I cannot say whether the documents produced by the CBI in the court are those very documents which were allegedly recovered from my house or not."
,however, what is relevant is that the documents were seized from his house and the documents so seized were the ones kept at his house by deceased Ashok Malhotra. In fact the above statement made during the cross-examination goes a long way to prove that the witness was giving a truthful account of what actually transpired. Even during his statement Ex. PW41/B he had stated "I was not aware about the documents kept in it". Had he been deposing falsely or was a tutored witness he would have stated that he was aware about the nature of documents or that he was shown the same at the time of recovery.
15.8 The raid at the house of Mohan Lal was conducted on 01.8.2007 by Inspector D.K. Thakur and the documents as recovered during the search and raid proceedings were seized vide Ex. PW43/A. As far as Mohan Lal is concerned, no doubt he failed to support the prosecution story on material particulars, however, he admitted certain crucial facts including the fact that he was knowing deceased Ashok Malhotra who as per the prosecution was the kingpin of the entire conspiracy. According CC No. 102/2019 CBI Vs. Braham Parkash and ors 182/216 to PW30 initially he met Ashok Malhotra while he used to sell milk opposite his house, thus often met him and thereafter he had worked with him as a guard. Secondly, PW30 proved that Ashok Malhotra was dealing in 25 and 60 sq. yard properties which could not have been legally sold. Thirdly, he admitted that Chander Jit Arora used to reside at property no. 1325, First Floor Mukherjee Nagar which was visited by Ashok Malhotra and that a raid was conducted by the CBI at the said house thus corroborating PW41's testimony. The relevant portion of his examination in chief in this regard read as under:-
"I know Ashok Malhotra for the last 30-35 years. Ashok Malhotra used to reside at Hudson Lane till 1984. After 1984 Ashok Malhotra shifted his residence to Mukherjee Nagar. ........... Ashok Malhotra used to earlier live in Hudson Lanes and then in Mukherjee Nagar. I used to sell milk opposite his house and often met him there. I have also worked as a Guard with Ashok Malhotra. He used to pay me Rs.3,000/- - Rs.3,500/- per month. I used to work as a Guard from 10 AM to 2 PM and then from 7 PM to 11 PM with Ashok Malhotra. My duty was at a gate of the house of Ashok Malhotra. Whenever any visitor came, I used to convey about the same and Ashok Malhotra then after seeing the visitor on CCTV, instructed me accordingly to let the visitor or not.........
..........Thereafter, he started dealing in sale and purchase of properties. Ashok Malhotra used to deal in properties in the areas of Mukherjee Nagar, Gandhi Vihar primarily. Ashok Malhotra used to deal in properties of 25 sq. yards as well as 60 sq. yards in Gandhi Vihar.
Q. Whether the properties of 25 sq. yards area in Gandhi Vihar in which Ashok Malhotra was dealing could have been legally sold or not ? (Objected to by Mr. Hitender Kapur, learned counsel on the ground that this question is intended to elicit an opinion and not a fact). Heard. Question Allowed. Ans. The aforesaid properties could not have legally sold. The reason for the same was that these properties had been allotted with the pre- condition that they could not be sold further by the allottees.
..................Property No. 1325, First Floor, Mukherjee Nagar, Delhi, is a residential house and Ashok Malhotra used to visit there also. One Mr. Chander Arora used to live there."
15.9 It will be worthwhile to highlight that CBI had also CC No. 102/2019 CBI Vs. Braham Parkash and ors 183/216 got recorded the statement of PW30 u/s 164 Cr.P.C. before the then Ld. Metropolitan Magistrate in RC no. 25(A)/2007 i.e. Ex. PW30/A and according to this statement Ashok Malhotra was dealing in the plots which he used to purchase from DDA officers for selling the same to third party and accused no. 2 R.S. Sandhu used to deal in these property matters in collusion with Ashok Malhotra. PW30 during his examination in chief admitted that the said statement was recorded by the then Ld. Metropolitan Magistrate and during his cross-examination no suggestion was given to PW30 that no such statement was recorded or that the said statement is a false, incorrect one. No doubt the law is well settled that statement u/s 164 Cr.P.C. cannot be treated as substantive evidence. It cannot be given more weightage as compared to the statement made in the court as the defence has no opportunity to cross examine the witness at the time of recording the statement u/s 164 Cr.P.C. (R. Shaji Vs. State of Karela AIR 2013 SC 651 and Priya Swami Vs. State 15.01.2015 Criminal Appeal no. 299/2000), however, it is not only the said statement but the same along with what was stated by the witness during his examination in chief as well as cross-examination which has to be considered in totality to appreciate whether there is any incriminating material emerging on record against the accused persons. The relevant portion of statement Ex. PW30/A is reproduced hereunder:-
"On 29.07.2007, at around 7.30 PM, Mr. Sandhu came to my house in his red colour car bearing No. 3737 and asked me that Ashok Malhotra has asked him to keep the papers (which are lying in the car) at my residence. In this regard, I also spoke to Ashok Malhotra on the phone of Mr Sandhu and Ashok Malhotra asked me to do so. And, I kept all those documents which were kept in bags at A-291, First Floor i.e. at the residence of my sisten-in-law Rajni, as the key of the house was with me at that time. On 30.07.2007 at around 7 to 7.15 AM, Mr. CC No. 102/2019 CBI Vs. Braham Parkash and ors 184/216 Sandhu again came to my residence and asked me to keep some more documents on the instructions of Ashok Malhotra. Those documents were kept in three bags and one iron trunk and two polythene bags. One of the polythene bags was containing 10 to 12 mobile phones and other was containing various passport size photographs which I kept at my residence at B-62, Nehru Vihar and when I went to the residence of Ashok Malhotra, he asked me that whether I have kept these documents safely and also asked me to take care of them. Ashok Malhotra had also kept some documents at 1325, First Floor, Mukherjee Nagar, Delhi. That House belongs to some Mr. Arora whose complete name I do not know. Ashok Malhotra used to obtain thumb impressions and signatures of his servants, drivers on various blank papers. He obtain signatures and thumb of Lali, Channa, Pappi, Rakesh and Ghodu in my presence. He also took their signatures and thumb impressions on various papers such as election ID card, ration card and some other written documents. On 01.08.2007 at around 11.30 AM, when I was sitting outside the house of Ashok Malhotra, I received a phone call on my mobile phone from one of my neibhour and he told me that about 10 to 15 persons have come to my residence and are asking about me. At the same time, the driver of the Ashok Malhotra i.e. Lali also noticed that some persons entered property No. 1325, Mukherjee Nagar and he told that they are of CBI and when he told this to Ashok Malhotra, Ashok Malhotra by putting his hand on his forehead asked Sandhu on phone about his whereabout, and thereafter, he took myself and Sandhu alongwith him in a santro car bearing No. 006. Thereafter, he dropped me at Panipat Bus Stand and gave me Rs.2,000/- and asked me to flee from there and not to return unless he says so. And he left form there towards Punjab. Thereafter, I went to Haridwar, Dehradun and then I came back to Delhi and came to know that my property has been seized and my warrant has been issued, and thereafter, I surrendered before the Police and gave my statement."
15.10 During his examination in chief PW30 had stated as under:-
"............Ashok Malhotra already knew that CBI raids had taken place at the aforesaid premises. Same day I left for Haridwar after informing Ashok Malhotra about the same."
15.11 During his cross-examination by the Ld. PP for the CBI, he admitted as under:-
"It is correct that I have stated to CBI that on 01.08.2007 at about 11:30 AM when I was sitting in Ashok Malhotra's house, I got a mobile call on my mobile from my neighbour that some CC No. 102/2019 CBI Vs. Braham Parkash and ors 185/216 people come to my house and were asking for me. Meanwhile, the driver of Ashok Malhotra (Lali) also saw some people getting in house No. 1325, Mukherjee Nagar where Ashok Malhotra had put some papers, it was learnt that these persons were from CBI. I alongwith Ashok Malhotra and his driver went to Panipat Bus Stand in Santro car. Ashok Malhotra told me to run away from there (Panipat Bus Stand) and not to come back till told by him."
15.12 Why PW30 turned hostile, did not completely support the prosecution case is for the reason that though he is a witness in the present case, however, he is accused in numerous cases relating to fraudulent allotment, sale of plots belonging to JJ dwellers as per the resettlement, relocation schemes for example RC Nos. 44(A)/2007, 45(A)/2007, 50(A)/2007, 53(A)/2007 etc. Being accused in those cases, he retracted from his earlier statement so as to avoid facing repercussions in those cases. Nonetheless his turning hostile does not mean that his entire testimony stands washed off the record, as was otherwise argued by Ld. Defence Counsel.
15.13 The law is fairly well settled now as regards the weightage to be attached to the testimony of a witness who has been declared hostile. Evidence of such a witness need not be totally rejected or treated as effaced or washed off the record altogether. It can be accepted to the extent his version is found to be dependable and is consistent with the case of the prosecution or defence on a careful scrutiny thereof. Reliance in this regard may be placed upon the law laid down in Balu Sonba Shinde v. State of Maharashtra 2003 SCC (Crl.) 112 , Shamsher Singh @ Rameshwar v. State of Haryana, (P&H) 2006(2) R.C.R. (Criminal) 867, Nisar Khan @ Guddu v. State of Uttaranchal CC No. 102/2019 CBI Vs. Braham Parkash and ors 186/216 (SC) 2006(1) Apex Criminal 340, Manoj Kumar v. State of Punjab (P&H) (D.B.) 2005(2) R.C.R.(Criminal) 813 and Swaran Singh v. State of Punjab (SC) 2000(2) R.C.R. (Criminal) 762.
15.14 In T. Shankar Prasad vs State Of Andhra Pradesh AIR 2004 SUPREME COURT 1242 it has been held as under:-
"The fact that PW-1 did not stick to his statement made during investigation does not totally obliterate his evidence. Even in criminal prosecution when a witness is cross-examined and contradicted with the leave of Court by the party calling him, his evidence cannot as a matter of law be treated as washed off record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process the credit of the witness has not been completely shaken he may after reading and considering the evidence of the said witness, accept in the light of other evidence on record that part of his testimony which he found to be creditworthy and act upon it. As noted above, PW-1 did not totally resile from his earlier statement. There was only a half- hearted attempt to partially shield A-
...............................In State of U.P. v. Dr. G.K.Ghosh (AIR 1984 SC 1453) it was observed that in case of an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, the Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence, there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the conviction."
15.15 In Attar Singh vs State of Maharashtra AIRONLINE 2012 SC 466 it was held as under:-
"13. .......... It could not be ignored that when a witness is declared hostile and when his testimony is not shaken on material points in the cross-examination, there is no ground to reject his testimony in toto as it is well-settled by a catena of decisions that the Court is not precluded from taking into account the statement of a hostile witness altogether and it is CC No. 102/2019 CBI Vs. Braham Parkash and ors 187/216 not necessary to discard the same in toto and can be relied upon partly. If some portion of the statement of the hostile witness inspires confidence, it can be relied upon. He cannot be thrown out as wholly unreliable. This was the view expressed by this court in the case of Syed Akbar vs. State of Karnataka reported in AIR 1979 SC 1848 whereby the learned Judges of the Supreme Court reversed the judgment of the Karnataka High Court which had discarded the evidence of a hostile witness in its entirety. Similarly, other High Courts in the matter of Gulshan Kumar vs. State (1993) Crl.L.J. 1525 as also Kunwar vs. State of U.P. (1993) Crl.L.J. 3421 as also Haneefa vs. State (1993) Crl.L.J. 2125 have held that it is not necessary to discard the evidence of the hostile witness in toto and can be relied upon partly. So also, in the matter of State of U.P. vs. Chet Ram reported in AIR 1989 SC 1543 = (1989) Crl.L.J. 1785; it was held that if some portion of the statement of the hostile witness inspires confidence it can be relied upon and the witness cannot be termed as wholly unreliable. It was further categorically held in the case of Shatrughan vs. State of M.P. (1993) Crl.L.J. 3120 that hostile witness is not necessarily a false witness. Granting of a permission by the Court to cross-examine his own witness does not amount to adjudication by the Court as to the veracity of a witness. It only means a declaration that the witness is adverse or unfriendly to the party calling him and not that the witness is untruthful. This was the view expressed by this Court in the matter of Sat Paul vs. Delhi Administration AIR 1976 SC
294. Thus, merely because a witness becomes hostile it would not result in throwing out the prosecution case, but the Court must see the relative effect of his testimony. If the evidence of a hostile witness is corroborated by other evidence, there is no legal bar to convict the accused. Thus testimony of a hostile witness is acceptable to the extent it is corroborated by that of a reliable witness. It is, therefore, open to the Court to consider the evidence and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused."
15.16 In Neeraj Dutta vs State (Govt. of N.C.T. of Delhi) 2022 LiveLaw (SC) 1029 it has been held as under:-
"52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross- examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading CC No. 102/2019 CBI Vs. Braham Parkash and ors 188/216 and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
67. Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence."
15.17 Coming back to the search and seizure proceedings as were conducted at the house of PW-30 Sh. Mohan Lal, Ld. Defence Counsel during the course of arguments pointed out the inconsistency, contradictions in the statement of PW-30 vis-a-vis that of PW-43 Inspector D.K. Thakur, PW-44 Inspector Raj Singh & PW-47 Inspector Girish Bhardwaj and argued that no such recovery was ever effected vide Ex. PW43/A, more so, when PW-30 categorically denied that the raid was conducted at his premises bearing no. B-62, Nehru Vihar, Delhi. It was argued that according to PW-30, though the residence of his sister-in-law Ms. Rajni, that of Sh. Chanderjeet Arora and premises bearing no. B-59 and B-70 in his neighbourhood were raided, however, no raid was ever conducted at his residence i.e. B-62, Nehru Vihar, Delhi. It was argued by Ld. Defence Counsel that the said statement of PW-30, which is reproduced hereunder, creates grave doubts upon the prosecution case:-
CC No. 102/2019 CBI Vs. Braham Parkash and ors 189/216 "In 2007, CBI had raided two houses bearing nos. B-59 and B- 70 in my neighbourhood and also at the residence of Mr. Chander Arora as well as my sister-in-law Rajni. House no. B- 59 was occupied by one Mr. Tilak Raj and B-70 was occupied by one Ms. Santosh. I was at my residence at B-62 when the aforesaid raids were conducted. I came to know about the raids as about 10-15 officials were there in my neighbourhood who had raided houses no. B-59 & B-70. There was commotion and during that commotion I came to know that CBI had raided the houses. Same came to my knowledge when I went to Mukherjee Nagar to deliver milk. Around same time, I came to know about CBI raid at Rajni's house also. Ashok Malhotra already knew that CBI raids had taken place at the aforesaid premises. Same day I left for Haridwar after informing Ashok Malhotra about the same. CBI had also called me and had asked me to take the keys of my residence from their office after about 10 days of the raids. I did not visit CBI office as they had not raided my house so there was no question of the keys of my house with them."
15.18 No doubt, as far as raid at the premises of PW-30 Mohan Lal and the seizure proceedings vide Ex. PW43/A are concerned, there appears to be inconsistency in the statement of prosecution witnesses qua the said search and seizure proceedings, however, suffice would be to say that the documents seized during the said raid vide seizure memo Ex. PW43/A do not pertain to the present case but they are related to the numerous other cases, details of some of which have been mentioned above. The documents pertaining to the present matter were recovered and seized from premises no. 1325 belonging to Chanderjeet Arora vide Ex. PW41/A, as has been duly discussed above.
15.19 Nonetheless, it will be pertinent to highlight that though PW-30 Sh. Mohan Lal denied, during his deposition before this court, that his premises bearing No. B-62, Nehru Vihar, Delhi was raided by CBI, however, he himself had moved one application in RC No. 25(A)/2007 on 24.09.2007 seeking CC No. 102/2019 CBI Vs. Braham Parkash and ors 190/216 release of his personal papers wherein, he had specifically mentioned that a raid was conducted at his residence B-62, Ground Floor, Nehru Vihar, Delhi on 01.08.2007. The said application is reproduced hereunder:-
CC No. 102/2019 CBI Vs. Braham Parkash and ors 191/216 15.20 Even at the time when statement Ex. PW30/A of Sh.
Mohan Lal was recorded before the Ld. Metropolitan Magistrate, as discussed above, the address was mentioned as B-62, Nehru Vihar, Delhi. Furthermore, PW-44 Inspector Raj Singh during his cross-examination stated as under:-
"I had visited B-62, Nehru Vihar and not B-59 where the search was being actually conducted, there was some mix-up initially with regard to the premises number, which I came to know later after the conclusion of the search. I came to know about the exact address of Mohan Lal when Mohan Lal joined the investigation. However, it was before the recording of statement of Mohan Lal U/s 164 Cr.P.C. After reaching at the premises where search was being conducted, I did not verify the address as based upon my authorization and the address given therein, the search was being conducted by Sh. D. K. Thakur presumably after verifying the address.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 192/216 Que: Whether you can affirm that the address of Mohan Lal, i.e. B-59, Nehru Vihar, PS Timarpur, Delhi is the correct address of the said person or not. What do you have to say?
Ans: I cannot affirm the above mentioned address of Mohan Lal as mentioned in Ex. PW43/A. Vol. So far as I remember, the search was conducted at the residential premises of Sh. Mohan Lal situated at Nehru Vihar."
Conspiracy
16. Hence, from the above discussion it stands established that a criminal conspiracy was hatched for fraudulent allotment of plots in the name of non-existing/fictitious entities, which plots otherwise were to be allotted to eligible JJ Dwellers and to sell these plots in the open market to unsuspecting buyers thereby cheating DDA, the eligibile JJ dwellers and causing unjust, unlawful enrichment to themselves by the accused persons. The prosecution case that it was deceased Ashok Malhotra who was the kingpin of this conspiracy stands duly established on record from the testimony of PW-30 Sh. Mohan Lal, his statement Ex. PW30/A, statement part of Ex. PW47/A6 of accused Ravinder Singh Sandhu as well as the testimony of bank officials i.e. PW-2, PW-6, PW-7, PW-8, PW-11, PW-35 and PW-36.
16.1 At this stage, it will be worthwhile to highlight that during the course of investigation vide Ex. PW44/C (colly) Insp. Raj Singh (PW44) had seized/was handed over statement of deceased Ashok Malhotra and his family members as was recorded by the officials of the Income Tax Department/Deputy Director of Income Tax. The said statements make it amply clear that a sum of more than Rs. 10 crore was deposited in cash in his CC No. 102/2019 CBI Vs. Braham Parkash and ors 193/216 account as well as in the accounts of his family members. Though it was claimed by deceased Ashok Malhotra and his family members including his brohter in law Sh. Pradeep Miglani (PW29) that the said amount was generated, its source was the sale of clothes in which he/their concerns/ proprietorships were dealing, however, he/they miserabaly failed to substantiate the said claim before the Income Tax authority. No bills, no invoices, details from where/whom the clothes were purchased or to whom they were sold, the address etc. were ever provided to the income tax authority and ultimately Rs. 6.1 crore as was lying in the accounts in the name of Ashok Malhotra and his family members was surrendered by Ashok Malhotra vide his letter dated 17.07.2008 which is part of Ex. PW44/C (colly). The manner, the ease with which Ashok Malhotra surrendered the said amount, allowed it to be forfeited by the income tax authority lends credence to the prosecution case that the said amount was collected by decased Ashok Malhotra from the sale of the questioned plots. Though there is no direct evidence in this regard, however, it is not very often that in conspiracy of the present nature that direct evidence is available. Conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. No doubt prosecution did not examine anybody from the income tax authorities nor the original of the statements were brought on record and Sh. Pradeep Miglani (PW29) also did not support the prosecution case, however, at the same time the defence did not rebut, contradict the testimony of PW44 or for that matter PW47 Insp. Girish Bhardwaj qua Ex. PW44/C (colly). In fact as stated by PW44 the original of Ex. PW44/C (colly) is filed in RC no. 25(A)/2007 which as discussed CC No. 102/2019 CBI Vs. Braham Parkash and ors 194/216 above is one of the several cases with the same modus-operandi. As far as PW44 is concerned, his examination in chief and cross- examination qua Ex. PW44/C (colly) is reproduced hereunder:-
Examination in chief "On being shown document D3, the witness states that it is receipt memo dated 17.12.2009 vide which document mentioned in it was handed over by me to then Insp. Girish Bhardwaj bearing my signature at point A and signature of the then Insp. Girish Bhardwaj at point B which I identify as we have worked together in CBI and I have seen him writing and signing several times during the course of our duty in the normal official work. The aforesaid receipt memo dated 17.12.2009 is now Ex. PW44/C-colly. Vide the aforesaid receipt memo dated 17.12.2009, photocopy of letter No. F. No. DDIT(Inv)/U-IV(2)/2008-19/119 dated 25.07.2009 alongwith enclosure was handed over by me to the then Insp. Girish Bhardwaj on 17.12.2009. The aforesaid letter alongwith enclosure are annexed with the receipt memo Ex. PW44/C-
colly.
Cross-examination The original of the document mentioned in Ex. PW44/C-colly is filed in RC 25(A)/2007. The letter to the Income Tax authorities for providing the document mentioned in Ex.PW44/C colly was written by the Superintendent of Police, CBI, ACB during the course of investigation of RC 25(A)/2007.
16.2 The defence did not cross examine PW47 Insp. Girish Bhardwaj on Ex. PW44/C (colly). As far as PW29 is concerned, he being the brother in law of decased Ashok Malhotra obviously could not have/did not support the prosecution case but the same has not dented the prosecution case in any manner.
16.3 Ld. Defence Counsel while relying upon Raja Naykar Vs. State of Chhattisgarh Criminal Appeal No. 902/2023 dated 24.01.2024, Rajesh and anr Vs. The State of Madhya Pradesh Criminal Appeal no. 793-794/2022 dated CC No. 102/2019 CBI Vs. Braham Parkash and ors 195/216 21.09.2023, Pradeep Kumar Vs. State of Haryana Criminal appeal no. 1338/2010 dated 05.01.2024 and Ram Sharan Chaturvedi Vs. The State of Madhya Pradesh Criminal Appeal no. 1066/2010 dated 25.08.2022 vehemently argued that the CBI case being based upon circumstantial evidence therefore the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. It was argued that not only the circumstances are not of conclusive nature but even the chain of evidence is far from being complete. It was argued that the entire CBI case is based solely upon assumptions and it is well settled law that suspicion, howsoever strong it may be, cannot take the place of proof beyond reasonable doubt. It was argued that merely on the ground of suspicion, no conviction can be founded.
16.4 I have carefully considered the case laws relied upon by Ld. Defence counsel. Section 120A of the Indian Penal Code 1860 defines criminal conspiracy and Section 120B provides punishment for criminal conspiracy. It will be worthwhile to go through the following observations made by the Hon'ble Apex Court in State Through Superintendent Of Police, Cbi/Sit vs. Nalini And Others 1999 ACR SC 2 1012, as regards the offence of criminal conspiracy:-
564. In Yash Pal Committal v. State Of Punjab . (1977) 4 SCC 540 the Court said as under:
"9. The offence of criminal conspiracy under Section 120- A is a distinct offence introduced for the first time in 1913 in Chapter V- A of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the CC No. 102/2019 CBI Vs. Braham Parkash and ors 196/216 conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy."
565. In Shivnarayan Laxminarayan Joshi v. State of Maharashtra (1980) 2 SCC 465 this Court said that it was manifest "that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inference drawn from acts or illegal omission committed by the conspirators in pursuance of a common design".
566. In Mohd. Usman Mohd. Hussain Maniyar v. State of Maharashtra (1981) 2 SCC 443 this Court again asserted:
"30. It is true that there is no evidence of any express agreement between the appellants to do or cause to be done the illegal act. For an offence under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication."
567. In State of H.P v. Krishan Lal Pardhan (1987) 2 SCC 17 the Court said that every one of the conspirators need not have taken active part in the commission of each and every one of the conspiratorial acts for the offence of conspiracy to be made out. It added that:
"The offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof. If pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences."
568. In Kehar Singh v. State (Delhi Admn.) (1988) 3 SCC 609 the Court said that the most important ingredient of the offence of conspiracy is agreement between two or more persons to do an illegal act. The illegal act may or may not be done in CC No. 102/2019 CBI Vs. Braham Parkash and ors 197/216 pursuance of the agreement, but the very agreement is an offence and is punishable. It further added as under:
"275. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must enquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy require some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand explains the limited nature of this proposition:
'Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties "actually came together and agreed in terms" to pursue the unlawful object; there need never have been an express verbal agreement, it being sufficient that there was "a tacit understanding between conspirators as to what should be done".' "
569. In Ajay Aggarwal v. Union of India (1993) 3 SCC 609 this Court considering the ingredients of the offence of conspiracy said:
"Section 120-A of IPC defines 'conspiracy' to mean that when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated as 'criminal conspiracy'. No agreement except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement in furtherance thereof. Section 120- B of IPC prescribes punishment for criminal conspiracy. It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) agreement (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the CC No. 102/2019 CBI Vs. Braham Parkash and ors 198/216 means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects."...........
582. In Bhagwandas Keshwani v. State of Rajasthan (1974) 4 SCC 611 (SCC at p. 613), this Court said that in cases of conspiracy better evidence than acts and statements of co- conspirators in pursuance of the conspiracy is hardly ever available.
583. Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles.
1. Under Section 120- A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed.
2. Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.
3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
4. Conspirators may for example, be enrolled in a chain - A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrols. There may be a kind of umbrella- spoke enrolment, where a single person at the centre does the enrolling and all the other members are unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell which conspiracy in a particular case falls into which category. It may however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse roles to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.
5. When two or more persons agree to commit a crime of CC No. 102/2019 CBI Vs. Braham Parkash and ors 199/216 conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.
6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
7. A charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy but also of the agreement. In the charge of conspiracy the court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders".
8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.
9. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or CC No. 102/2019 CBI Vs. Braham Parkash and ors 200/216 more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.
10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
16.5 At this stage, it will be worthwhile to highlight the following observations of the Hon'ble Apex Court in Subramanian Swamy vs Manmohan Singh & Ors.
MANU/SC/0067/2012:
"Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to CC No. 102/2019 CBI Vs. Braham Parkash and ors 201/216 perpetuate it."
16.6 It is well settled law that though proof beyond reasonable doubt should be adduced in all criminal cases, however, it is not necessary that the same should be perfect. In fact there cannot ever be a perfect proof in any criminal trial. Perfect proof can only exist in ideal situations which hardly exists. Investigation and collection of evidence is a cumbersome process and there are bound to be minor loopholes and lacunas even in the best of the investigation. But if the minor loopholes, contradictions, lacunas do not shake the basic foundation and there is sufficient material/substantive evidence, those loopholes and contradictions can be and rather should be easily ignored or else it will defeat the ends of justice. At this stage, it will be worthwhile to highlight the following observations made in Inder Singh & Anr vs The State (Delhi Admn.) 1978 AIR 1091:-
"Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is, too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many, guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why fake up ? Because the court asks for manufacture to make truth look true ? No, we must be realistic.
"We are satisfied that the broad features of the case, the general trend of the testimony and the convincing array of facts which are indisputable, converge to the only conclusion that CC No. 102/2019 CBI Vs. Braham Parkash and ors 202/216 may be reasonably drawn, namely, that the accused are guilty. Theoretical possibilities may not shake up, fancied weaknesses may not defeat, when verdicts are rested on sure foundations. Stray chances of innocence haunting the corridors of the court cannot topple concurrent findings of guilt.
We feel unhappy that, while infirmity in some aspect or other of this prosecution case should not invalidate the culpability which is otherwise, veraciously made out, tragic occurrences like this one......"
16.7 Ld. Defence counsel while relying upon Babu Bhai Vs. State of Gujarat 2010 AIR SCW 5126 and Kailash Gour and ors Vs. State of Assam AIR 2012 Supreme Court 786 argued that the investigation in the present matter was unfair and faulty, therefore, the benefit of the same should be given to the accused persons. It was argued that the investigation was carried out with ulterior motive merely to cause harassment to the accused persons and to bolster up the otherwise infirm prosecution case. However, I find no merits in his arguments. No doubt there are certain shortcomings in the investigation but there is absolutely no reason or material before me to assume that the investigation was not fair or transparent. The manner in which the raid was conducted at the house of Mohan Lal (PW30), though no incriminating material pertaining to the present case was recovered from the said raid, lacked professionalism and was absolutely sloppy. Certain witnesses e.g. Kaniha Lal (Assistant Director DDA), Insp. S.C. Bhalla and those who were found at/came to the raided properties/houses at the time of said raid at the house of PW30 i.e. Sh. Narender Singh Chokker, wife of PW30 etc. should have also been examined as witnesses. Similarly witnesses conversant with the handwriting of accused Braham Parkash and Ravinder Singh Sandhu should have also been examined to lend further credence CC No. 102/2019 CBI Vs. Braham Parkash and ors 203/216 to the prosecution case. Original record from income tax department and the relevant witnesses should have also been summoned/examined and most importantly the prosecution witnesses associated with the investigation should have deposed with more authority, sincerity and in the manner as is expected from them. However, merely on account of these shortcomings no benefit can be given to the accused persons as these shortcomings/lacunas have not affected the prosecution case on material aspects. The prosecution story as a whole inspire confidence.
16.8 Ineffective and indifferent investigation as a result of acts of omission or commission, deliberate or otherwise, by the Investigating Officers is absolutely unacceptable. However, the question to be considered is whether the lapses in the investigation are mere irregularity or an illegality which would adversely affect the case of the prosecution. What is to be considered is whether such default and/or acts of omission and commission have adversely affected the case of the prosecution and whether such default and acts were deliberate, unintentional or resulted from unavoidable circumstances of a given case. (Dayal Singh vs. State of Uttranchal (2012) 8 SCC 263). What the court is required to see is the prosecution evidence in its entirety and weigh whether defective or irresponsible investigation has rendered the said evidence shaky or unreliable. When the investigation is perfunctory it becomes the duty of the court to see if the evidence on record minus the lapses is sufficient to establish the guilt of the accused. Noticing the possibility of investigation being designedly defective it was CC No. 102/2019 CBI Vs. Braham Parkash and ors 204/216 held in Dhanaj Singh v. State of Punjab (2004) 3 SCC 654 as under:-
"5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."
16.9 Dealing with the cases of omission and commission it was held in Paras Yadav v. State of Bihar (1999) 2 SCC 126 as under:-
"...........that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party."
16.10 In Zahira Habibullah Sheikh (5) v. State of Gujarat (2006) 3 SCC 374 it was held as under:
"42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure a fair trial where the accused and the prosecution both get a fair deal. Public interest in proper administration of justice must be given as much importance, if not more, as the interest of the individual accused. In this courts have a vital role to play."
16.11 In Hema Vs. State (2013) 10 SCC 192 it was held that if the evidence adduced is reliable, the contaminated conduct CC No. 102/2019 CBI Vs. Braham Parkash and ors 205/216 of the police officers and the defective investigation would not entitled the accused for acquittal. It was observed as under:
"14. It is also settled law that for certain defects in investigation, the accused cannot be acquitted. This aspect has been considered in various decisions. In C. Muniappan v. State of T.N. [(2010) 9 SCC 567], the following discussion and conclusions are relevant which are as follows: (SCC p. 589, para 55) ―55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
16.12 In Gajoo v. State of Uttarakhand (2012) 9 SCC 532 it was held "A defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused, should not be an aspect of material consideration by the court."
16.13 In Zindar Ali SK vs State of West Bangal Ors. MANU/SC/0141/2009 it has been categorically held that defence cannot take advantage of bad investigation, when there is a clinching evidence. It is also settled proposition of law that minor contradictions in prosecution case can be ignored if cogent evidences are available on record for conviction of the accused. (Girwar Singh & Ors. Vs CBI MANU/DE/4551/2015).
CC No. 102/2019 CBI Vs. Braham Parkash and ors 206/216 16.14 When certain factual aspects have been held back and have not been brought on record creating grave suspicion, the Court must examine whether the lack of or improper investigation has resulted in incompleteness or uncertainty. If the investigation leaves a number of queries unanswered and creates confusion or ambiguity, conviction should not be ordered/sustained. However, in every case of defective investigation, an accused cannot be acquitted, if the reliable evidence produced, dehors the defective investigation, is sufficient to bring home the guilt of the accused beyond all reasonable doubts. In such matters, the accused cannot take advantage of defective investigation unless the defective investigation causes reasonable doubt about the prosecution case. The law is well settled that an accused should not be allowed to go scott free or the prosecution be disbelieved for defective investigation (Balwant Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 84 and Amar Singh Vs. Balwinder Singh 2003 AIR SCW 717). Every faulty investigation or padding in evidence cannot by itself lead to total demolition of prosecution case if it can otherwise stand ignoring these fallacies. (Lakshmi v. State of UP (SC) 2002 (4) R.C.R. (Criminal) 82). Mere faulty investigation cannot be made basis of acquitting the accused when sufficient evidence is available to nail him (Ram Parshad v. State of Haryana, (P & H) (DB) 1992(3) R.C.R (Criminal)
231). In Zahira Habibulla H. Sheikh v. State of Gujrat (SC), 2004 (4) S.C.C 158 and State of UP v. Jagdeo (SC) 2003 A.I.R. (SC) 660. To do so would tantamount to playing into hands of investigating officer if investigation is designedly defective.
CC No. 102/2019 CBI Vs. Braham Parkash and ors 207/216 16.15 As far as accused no. 1 is concerned, the evidence against him is not merely circumstantial but there is direct evidence as well. The testimony of PW1 and PW37, which has been discussed above in detail, coupled with positive FSL result Ex. PW40/F leaves absolutely no doubt that he had made interpolations, fraudulent entries in the survey lists Mark PW1/1 to Mark PW1/4 and same was done pursuant to conspiracy hatched by him and the other accused persons. But for the conspiracy there was no occasion for him to make those interpolations, fraudulent/questioned entries in survey lists Mark PW1/1 to Mark PW1/4 as well as in the allotment registers. Similarly, the plot numbers were mentioned by him on the backside of the demand letters pursuant to, in furtherance of the object of the conspiracy. All this ensured allotment of alternate plots in the name of fictitious, non existing JJ dwellers which ultimately helped in sale of these plots to PW10, PW12 to PW22 and PW24 to PW28 who were found in possession of these plots. PW10, PW12 to PW22 and PW24 to PW28 otherwise were not entitled to get these plots allotted or to be found in possession of the same or owning the same as was found during the investigation. No doubt the allotment in the name of those fictitious, non existing entities has not been cancelled till date nor these plots have been repossessed by DDA, as was pointed out by Ld. Defence Counsel, but suffice would be to say that same is of no concern to this court. Failure on the part of the DDA to do the needful will not absolve the accused persons of their liabilities.
16.16 As discussed above, fake ration cards and ID cards CC No. 102/2019 CBI Vs. Braham Parkash and ors 208/216 were used for making entries of the JJ dwellers in the survey lists so as to show their entitlement. Same stands proved from the testimony of PW3 to PW5. These ration cards and ID cards were allegedly prepared by Lal Mani, who as discussed above, was discharged by the Ld. Predecessor of this court. However, the law is well settled that merely on account of discharge or acquittal of one of the alleged conspirator, the charge of conspiracy does not fail. Reliance in this regard may be placed upon Bimbadhar Pradhan vs The State of Orissa 1956 AIR 469.
16.17 The fact that these ID cards, ration cards were used, their details were mentioned in the survey lists and the allotment registers by accused no. 1 sufficiently connects accused no. 1 to the conspiracy. As already discussed above that it is not merely a coincidence that all the ID cards, ration cards qua the questioned entries are fake, fabricated documents. The persons/the entities in whose name the entries were made were non existing, fictitious individuals.
16.18 During investigation and as discussed above copy of DDA files which included demand letters, allotment letters, demand drafts, copy of ration cards etc. were recovered from the house of Chanderjeet Arora (PW41) vide seizure memo Ex. PW41/A. These files pertained to the questioned entries. PW41 had categorically stated that these files were kept at his house by deceased Ashok Malhotra who came to his house along with his driver Pappi. Said position also appears from his statement Ex. PW41/B. The confessional statement of accused Ravinder Singh Sandhu i.e. part of Ex. PW47/A-6 and the statement of PW30 CC No. 102/2019 CBI Vs. Braham Parkash and ors 209/216 Mohan Lal i.e. Ex. PW30/A, as discussed above in detail, throws more light on the role of deceased Ashok Malhotra and how the conspiracy was hatched and given effect to. But for the conspiracy there was no occasion for deceased Ashok Malhotra to be in possession of these documents/files or to keep them at the house of PW41.
16.19 The fact that some of the demand drafts/bankers cheques/pay orders i.e. Ex. PW6/D-1 to D-5, as discussed above and were proved by the bank officials, were got prepared by Ashok Malhotra through his driver Pappi further connects the dots in the conspiracy.
16.20 As far as accused Ravinder Singh Sandhu is concerned, his handwriting/signatures appear on the backside of the photograph affixed on the documents as seized vide Ex. PW46/A-2 as were submitted with the DDA. His confessional statement part of Ex. PW47/A-6 and the FSL report Ex. PW40/F clinches the issue in this regard. These signatures unequivocally connects him with the conspiracy. But for being part of conspiracy and to further the object of the conspiracy, there was no occasion for his signatures to appear on the photographs affixed on these documents.
Offences made out
17. Therefore in view of the above discussion, prosecution has been successful in establishing its case u/s 120B of the Indian Penal Code 1860 r/w section 420, 467, 468 & 471 of the Indian CC No. 102/2019 CBI Vs. Braham Parkash and ors 210/216 Penal Code 1860 and section 13(2) r/w section 13(1) (d) of the Prevention of Corruption Act 1988 against accused Braham Parkash and accused Ravinder Singh Sandhu. No doubt remains that they were part of the conspiracy which was hatched to get fraudulent allotment of plots, belonging to JJ dwellers as per the Alaknanda Camp Resettlement scheme of DDA, in the name of fake, fictitious, non existing persons. The active role played by accused Braham Parkash in this conspiracy was of forging the entries in the survey lists, the allotment registers and allotting the plot numbers on the backside of the demand letters. Accused Ravinder Singh Sandhu signed on the backside of the photographs of the fake, fictitious, non existing persons who had been shown as the allottees and which photographs were used/affixed on the documents submitted with the DDA, after issuance of the demand letters. Not only he had arranged the photographs but had signed on the backside of the same in the name of those fictitious/non existing allottees.
17.1 Accused Braham Parkash having forged the survey lists Mark PW1/1 to Mark PW1/4 as well as the allotment registers Ex. PW46/A-4 & A-5 (colly) by making fraudulent entries in the same committed offences punishable u/s 467 of the Indian Penal Code 1860 r/w section 120B of the Indian Penal Code 1860. False record was created by him in the form of forged entries in the survey lists, the allotment registers and the same was done in furtherance of, to achieve the object of the conspiracy. The intent was to cause damage/injury to not only to DDA but the eligible JJ dwellers. The aim, the intent was also to make DDA part with the possession of the questioned plots to CC No. 102/2019 CBI Vs. Braham Parkash and ors 211/216 those fictitious, non existing persons and the ultimate aim of the said forgery was to aid the title of/right to occupy the questioned plots by PW10, PW12 to PW22 and PW24 to PW28 or for that matter any other unsuspecting buyer. On the basis of these fraudulent entries the alternate plots were allotted which plot numbers were mentioned on the backside of the demand letters. It was forgery of these documents which ultimately not only allowed fraudulent allotment in the name of fake/fictitious/non existing persons but the ultimate transfer/sale of the questioned plots to the unsuspecting buyers. This way not only DDA was cheated but so were the eligible JJ dwellers who, but for the fraudulent, forged entries would have been entitled to and got possession of the alternate/questioned plots. DDA was deceived, on account of the fraud committed by accused Braham Parkash, to deliver the possession of the questioned plots to the non existing/fictitious persons which plots ultimately came in the hands/occupation of PW10, PW12 to PW22 and PW24 to PW28. Thus accused Braham Parkash committed offence punishable u/s 420 of the Indian Penal Code 1860 r/w section 120B of the Indian Penal Code 1860.
17.2 The above forgery was committed by accused Braham Parkash for cheating not only the DDA but the real eligible JJ dwellers. But for the fraudulent entries in the survey lists, the allotment registers and the allotments of plot numbers on the backside of the demand letters, the plots would have been allotted to the eligible JJ dwellers and not in the name of fake, fictitious, non existing persons. The plots would not have come into the hands of PW10, PW12 to PW22 and PW24 to PW28 CC No. 102/2019 CBI Vs. Braham Parkash and ors 212/216 who did not deserve the same. Thus, accused Braham Parkash committed offence punishable u/s 468 r/w section 120B of Indian Penal Code 1860.
17.3 The forged entries in the survey lists and the allotment registers were used by accused Braham Parkash as genuine, knowing that they were forged, fabricated documents. In fact he was the one who had forged/fabricated the entries. This was done to allot questioned plots in the name of fake, fictitious persons. Thereby accused Braham Parkash committed offence punishable u/s 471 of the Indian Penal Code 1860 r/w section 120B of the Indian Penal Code 1860.
17.4 At the time when the above forgery was committed, fraudulent entries were made in the survey lists accused Braham Parkash being Assistant Director DDA was a public servant. He abused his position, authority to forge, fabricate the survey lists as well as allotment registers and fraudulently allotted plots to non existing/fictitious entities. He was all throughout aware that the persons in whose names he was making entries in the survey lists and the allotment registers were non existing persons and he made those entries in furtherance of, for achieving the objectives of conspiracy. It was his forged entries which ultimately helped the co-accused persons to sell the questioned plots to PW10, PW12 to PW22 and PW24 to PW28/unsuspecting buyers thereby causing, providing pecuniary benefits/advantages to themselves. The sale of the plots to PW10, PW12 to PW22 and PW24 to PW28 allowed unjust enrichment, wrongful gain to the co- accused persons. As discussed above, the huge amount deposited CC No. 102/2019 CBI Vs. Braham Parkash and ors 213/216 in various accounts of deceased Ashok Malhotra and his relatives and as was subsequently surrendered by him to the income tax authorities is sufficient, corroborative proof of the said pecuniary advantage caused by accused Braham Parkash to the co- conspirators by misusing his position as a public servant. Thus accused Braham Parkash committed offence punishable u/s 13 (2) r/w section 13(1) (d) of the Prevention of Corruption Act 1988.
17.5 As far as accused Ravinder Singh Sandhu is concerned, in addition to being guilty u/s 120B of the Indian Penal Code 1860 r/w section 420, 467, 468 & 471 of the Indian Penal Code 1860 and section 13(2) r/w section 13(1) (d) of the Prevention of Corruption Act 1988, he is also guilty for having committed offence punishable u/s 468 of the Indian Penal Code 1860 r/w section 120B of the Indian Penal Code 1860 and section 420 of the Indian Penal Code 1860 r/w section 120B of the Indian Penal Code 1860. As discussed above, he had affixed his signatures on the backside of the photographs of the non existing/fictitious allottees in the DDA files. Same set of photographs, with just change of the background, were used in preparation of the fake I cards. It was he who had signed on the backside of the photographs in the name of the allottees which forgery was done to provide genuineness to the identity of persons/entities who did not exist. It was done with intent to cause damage to DDA as well as to the JJ dwellers who would have otherwise got allotment of the alternate/questioned plots but for the conspiracy. At the time when he affixed his signatures on the backside of the photographs he was aware that he is signing CC No. 102/2019 CBI Vs. Braham Parkash and ors 214/216 in the name of non existing/fictitious persons/entities. He had no business to sign in the name of those persons on the backside of the photographs. He fraudulently, dishonestly did the same so as to give genuineness to the photographs/to the identity of those non existing/fictitious persons. These photographs with his forged signatures were used in DDA files. Being part of the conspiracy, having played an active role in the same, the forging of the photographs used in cheating DDA and those innocent JJ dwellers, he stands convicted for offences punishable u/s 468 IPC r/w section 120B of the Indian Penal Code 1860 and section 420 of the Indian Penal Code 1860 r/w section 120B of the Indian Penal Code 1860.
17.6 As far as offences u/s 467 of the Indian Penal Code 1860 r/w section 120B of the Indian Penal Code 1860 and u/s 471 of the Indian Penal Code 1860 r/w section 120B of the Indian Penal Code 1860 are concerned, there is no evidence of his having forged any valuable security or any other document of said nature or of using the same as genuine. He already having been held guilty for offence u/s 120B of the Indian Penal Code 1860 r/w section 420, 467, 468 & 471 of the Indian Penal Code 1860 and section 13(2) r/w section 13(1) (d) of the Prevention of Corruption Act 1988 and though no doubt he was part of conspiracy, he stands acquitted for offence punishable u/s 467 of the Indian Penal Code 1860 r/w section 120B of the Indian Penal Code 1860 and u/s 471 of the Indian Penal Code 1860 r/w section 120B of the Indian Penal Code 1860.
17.7 As far as accused Rajwant Singh is concerned, in CC No. 102/2019 CBI Vs. Braham Parkash and ors 215/216 view of the above discussion he stands acquitted of the charges.
18. Copy of the judgment be provided free of cost to the accused persons and let accused Braham Parkash and Ravinder Singh Sandhu be heard separately on the point of sentence.
Announced in the open court on 29th of May 2024 (GAURAV RAO) Special Judge CBI (PC Act)-01 Rouse Avenue Court Complex, New Delhi CC No. 102/2019 CBI Vs. Braham Parkash and ors 216/216